The victory of Nicolas Chartier’s Voltage Pictures over iiNet in the Australian Federal Court is both a big deal and more evidence of the crushing futility of modern copyright.
Pyrrhic is the word that springs to mind. It is indeed a great and symbolic victory for the copyright owners of the world, but pyrrhic nonetheless — a finger in the dyke against a relentless tide of file sharing among strangers.
Justice Nye Perram has ordered iiNet to hand over the names and addresses of 4726 owners of IP addresses that it had assigned, after Chartier’s movie production company learned, using a program called Maverick Monitor, that the film Dallas Buyer’s Club was made available for illegal download from those addresses.
Dallas Buyers Club was a $5 million budget film that grossed $55m at the box office and won three Academy awards, including Best Actor for Matthew McConaughey.
Subject to an appeal by iiNet (IIN), Voltage Pictures will write to the 4726 soon-to-be-outed pirates and ask them for money, having first had the letters vetted by His Honour to ensure there is no hanky panky with “speculative invoices” (ambit claims).
Most of the letters will go straight in the bin. Some IP addresses will be Wi-Fi cafes with no idea which of their customers might have downloaded Dallas Buyers Club over a cappuccino and muffin. Many, possibly most, will be teenagers with no money; some, possibly most, will be serial pirates who don’t give a second thought to what they are doing and wouldn’t dream of ever paying for a movie again.
Nicolas Chartier would then need to pursue the guilty through the courts, in the manner of King Pyrrhus of Epirus battling the Romans in 280BC. He won by losing just a few less soldiers than Rome, and never recovered from his victory. It is theoretically possibly that Chartier will win a large damages claim against someone who is capable of paying, but very unlikely, and that wouldn’t bring file sharing to an end anyway.
iiNet argued that only a ‘single sliver’ of the film was downloaded from each address, which is how BitTorrent works, so that each infringement was minor and there was no realistic chance of significant injunctive relief because of that.
Justice Perram rejected this because he thought it “plausible that a copyright owner might get aggravated damages” as a deterrence. He ruled that iiNet’s argument doesn’t give “sufficient weight to the genuine rights which here exist …”
iiNet also argued that it has an obligation to protect the privacy of its customers, which the judge did accept. That’s one reason he wants to vet the letters and make sure the names and addresses are used for one purpose only.
And finally, on the grounds that eight excuses are better than one or two, iiNet told the judge that the government had required the industry to formulate an industry code of practice to deal with piracy but they just hadn’t got around to it yet, but would do so any minute — and in any case, ACMA had drafted one because of their failure to do it, so he should wait for that.
Justice Perram rejected this because: “First, it is only a draft. Secondly, it is an incomplete draft. Thirdly, there is no sensible chance of it coming into force in the next few months.”
And so iiNet lost and a part of the film industry won a famous battle in the war to not go the way of the music industry.
Fifteen years after Napster, recorded music is a dead duck. Musicians now eke out a subsistence income from iTunes, Spotify and Pandora, as well as trying to get their songs picked up by an advertiser for a rare payday, and otherwise grinding their way through countless wet-carpet gigs.
Becoming a musician has gone from desirable to dismal in a decade because of the scourge or wonder of file sharing (depending on your point of view), and the movie business is terrified of going the same way.
No more massive paydays from blockbuster movies, just the misery of $10 a month subscriptions in a brutally competitive, low-margin business. The horror, the horror, as Colonel Kurtz (Marlon Brando) whispered in Apocalypse Now as he died.
The problem is that two very surprising and related things have happened as a result of the internet.
The first is what Clay Shirky calls “cognitive surplus”: the willingness and ability of what had previously been passive media consumers to actually create content rather than simply consume it.
There was a vast surplus of time and creativity that was unrecognised and untapped because most people didn’t have access to an outlet. Now the outlets exist for everyone, for free — Twitter, Facebook, YouTube, Instagram, blogging etc — and the outpouring of stuff is unimaginable. It was a colossal dam that broke and it will never go back.
And part of this vast, connected creativity is the second thing: the sharing of stuff with strangers.
Who could have imagined that people who put an audio or video file on their computer would then be happy to make it available to anyone, anywhere and anytime?
In fact the act of sharing files with people in far off places was quite thrilling at first, then appealingly subversive and is now just routine, a part of everyday life.
It became a game of whack-a-mole for a while. Napster was whacked, and then Kazaa popped up. That was whacked, and then Limewire popped up. And then the BitTorrent platform arrived and there were suddenly too many moles to whack.
And it turns out that the law of copyright, as justified and proper as it is, is really just the instrument of a cartel that has been protected by high barriers to entry.
Publishing other peoples’ copyright used to be easy to prevent because it was very hard to do: you had to have access to a printing press, or a radio network or music publishing business or TV station.
Now the barriers have fallen, and copyright has become a casualty of the cognitive surplus, and the otherwise wonderful culture of sharing with strangers.