The ruling came out on Friday on the iiNet copyright infringement case. I’ve written about this before here and here. I see the case as incredibly important for rights holders everywhere and I do think we should be celebrating the outcome, while also considering the potential ramifications of this. If you’re not sure of the details, check out a good summary here.

Technology has always changed how we interact socially around entertainment and how we consume (and value) content. Cinema did this. Radio did this. Television is still doing this. Whether the effect of the Internet will be as big as television possibly remains to be seen; we certainly aren’t end of either and are arguable at the beginning of their coming together into new forms. The peer-to-peer horse has bolted and the attempt to hold an ISP responsible for stopping this is misguided. We don’t hold the RTA responsible for road accidents, but they built and maintain the roads.

In the case of iiNet, there are a few things to look more closely at. Firstly, if we are to ever ‘control’ peer-to-peer sharing (and I use the work ‘control’ very lightly), it will most likely be through some form of collective agreement, where a small sum is paid into a centralised pool, and this then divided between those whose content has been shared (more on that here.) To achieve this, we need smart ISP’s who are able to accurately report on the traffic on their network so that rights holders can be equitably rewarded. iiNet is one of the smart ISPs. It’s why the studios went after them. It was wrong.

Secondly, most rights holders have a far bigger issue in getting their content into the hands of consumers, who might then decide they value it highly enough to pay something, than in theft of their content. If fact, if people don’t want to ’steal’ your content (let’s say ’share’), then it probably isn’t very good content at all - so let’s actively encourage sharing. The case against iiNet was not taken by outraged independent rights holders seeking to protect their creative concepts and property, but by a consortium of major studios and broadcasters (admittedly, who do hold rights - but more akin to publishing rights) seeking to protect their interests and limit consumer access to content except through their agreed channels.

Finally, there are echoes here of the case taken against Sony video recorders by the major studios in the 80’s. The studios argued that by providing the ability to record programs (illegally) from television and share these, Sony encouraged piracy. After a long and complex battle; during which these same studios realised and took advantage of the potential of this new recording and content delivery media; it was finally ruled that if the device (eg the video recorded) had any purpose which could be regarded as legitimate, then Sony was not responsible for consumer actions which might be illegal.

The results in the iiNet case are not surprising, they echo the case against radio (by record labels) in the 40’s and the case against Sony cited above. For content right holders - the way is now possible clearer to argue for a small (say $5 per month), ubiquitous, ideally voluntary, levy by ISPs, in return for which consumers would be entitled to download, stream, torrent and share whatever content they wanted. This would be backed by a collection society, akin to Screenrights, responsible for collecting the money, determining rights holders and making payment.

The result would be a dramatic increase in payments to individuals rights holders, an immediate clarification of a law which cannot keep up to date with behaviour and the changing content landscape, and the removal of the stigma of ‘piracy’ - a crime unwillingly committed by millions of Australians a month.

It would also somewhat undermine the stranglehold on content that major studios and broadcasters have - and that is why they started this in the first case.