The evidence is in: copyright net censorship just won’t work

The piracy site takedown regime the government proposes to impose on internet service providers has failed to halt the growth of file sharing overseas and led to numerous legitimate sites, including those of the biggest media companies, being blocked.

The Online Copyright Infringement draft discussion paper, revealed by Crikey last week, seeks comment on a proposal that:

The draft flags that ISPs might even agree to forfeit their legal rights in such circumstances, saying “in some overseas jurisdictions, industry has worked together to streamline this process by agreeing that in obvious cases, ISPs will not contest the injunction application”.

Despite briefly discussing the overseas operation of similar censorship schemes, the draft paper ignores the widespread failings of the scheme in countries where it has already been implemented. For example,

• in the UK, the BBC’s Radio Times website was blocked after the Premier League demanded an infringing site be taken down and failed to check the addresses it provided;
• legitimate sites listed by an infringing site in its DNS records were also blocked;
• legitimate file sharing sites have also been blocked on UK internet filters;
• as was file sharing and anti-censorship news and discussion site Torrentfreak; and
• a similar Indian scheme resulted in Google Docs and other legitimate sites being blocked.

While some of the UK incidents were because infringing sites deliberately co-opted the addresses of legitimate sites, they reflect a problem that we’ve seen in Australia where the process of blocking sites leads to over-blocking and the shutting down of legitimate sites. The Australian Securities and Investments Commission blocked a quarter of a million websites in 2013, including the site of Melbourne Free University. Under the UK scheme, the copyright industry has responsibility for ensuring that the correct site names are provided to ISPs for blocking. The mechanism by which the industry would assure Australian courts that sites were predominantly for infringing copyright is unclear, and legitimate sites would appear to have no role in contesting injunctions or even be aware they were to be blocked in Australia.

Worse, the internet censorship scheme proposed for Australia has been demonstrated not to work in the Netherlands. A peer-reviewed paper by Dutch academics showed that website blocking had no impact on the proportion of the Dutch population engaged in file sharing, although making content legitimately available may have done so for music downloads. The reasons are obvious: censorship can be easily evaded by users employing VPNs and other forms of encryption or anonymising tools, which have the added bonus of making life far more difficult for intelligence and law enforcement agencies looking to engage in mass surveillance. The Netherlands failure accords with global trends. The world’s most blocked piracy site, the Pirate Bay, has doubled its traffic since 2011. According to a pro-censorship site, the number of sites blocked from Google results at the request of the copyright industry has dramatically increased since 2012. However, since 2010, global file sharing traffic is estimated to have increased by 50%.

File sharing was, for a time, the largest form of internet traffic but now forms a much smaller proportion of much greater overall traffic due to the growth of wireless connectivity and traffic generated by “the internet of things”. But in the United States, file sharing has fallen dramatically as a proportion of internet traffic in response to the greater availability of streaming legitimate content via services like Netflix — yet again demonstrating that if the copyright industry responds to consumer demand instead of trying to criminalise it, consumers respond.

As the Melbourne Free University example demonstrates, a poorly implemented web take-down scheme — and so far there have been no other kinds — poses a direct threat to internet users and free speech. The other key proposal flagged in the draft paper, amending the Copyright Act to make it easier for the copyright industry to sue ISPs unless they prevented file sharing, also raises the spectre of ISPs being compelled to spy on their customers (at the financial expense of the latter), or at least those who haven’t masked their traffic. Altogether, the draft paper has the potential to lead to a far more direct threat to online rights than the government’s current bill to reform national security legislation.