By Liam Hehir 

A Difficult relationship

Ever since VHS machines with a recording function became prevalent, very few people in this country could honestly say that they have never been in breach of copyright law. After all, who among us has gotten the express written permission of both SANZAR and News Corporation before taping a rugby game?

The relationship between copyright holders and consumers soon escalated into a full-blown war.

The first targets were the programs that enable file sharing. The recording industry put many resources into getting the famous ‘Napster' shut down. It soon became apparent that platforms for illegally downloading music and videos are like the mythical hydra, kill one head and seven grow to replace it. Audiogalazy, Kazaa, and Grokster rushed into Napster's void. After them came Morpheus, uTorrent and the hundreds and hundreds of Chinese sites live-streaming the latest movies.

So the focus has moved to catching out consumers. In 2003, the Recording Industry Association of America randomly sued 263 of the 4 million then users of Kazaa. Unfortunately for the RIAA, one of these was 12 year old Brianna Torres. Under American law, each song Torres downloaded carried a $150,000 fine.

The headline ‘Music industry sues 12 year old girl for millions' was a PR disaster. Hackers descended on the RIAA, attacking and paralysing their website. Officially, the RIAA and Torres ‘settled' out of court. In reality, the recording industry made a face-saving back down.

Also, the risk of an average internet user being sued was less than the chances of their being hit by lightning. So the legal threats failed to have the desired chilling effect. Music piracy continued to grow unabated.

A turning point?

Then someone came up with the following idea. Instead of expensive litigation, why not just cut off the downloader's internet connection? Internet users would get 2 warnings before your internet would be disconnected ("3 strikes and you're out). Access to the internet is so vital these days that, as a tactical threat, it is a potentially brilliant move.

France soon enshrined 3 strikes and you're out. So did Ireland. Britain and Australia are considering it. It was to be implemented in New Zealand, but such was the firestorm of protest from internet users, that the incoming government shelved the idea.

The new proposal

In a cabinet paper, the government has unveiled its alternative. If adopted, it will work like this:

• If a copyright holder has ‘reasonable evidence' that you are downloading files illegally, they can force your ISP[1] to send you an ‘education' notice;

• If you transgress once more, your ISP will be required to send you an ‘cease and desist' and an ‘advisory' notice;

• A third transgression will give the copyright holder the ability to sue in the Copyright tribunal for ‘compensation.' The tribunal will be able to award a maximum of $15,000 in compensation, although the level of compensation will supposedly mirror the damage caused to the rights holder;

• At each step of the way, you will be able to dispute the copyright holder's version of events.

The new proposal recognises that downloading for personal, domestic, use (while wrong) is not a major crime that justifies massive fines or jail time. It apparently seeks to impose a realistic penalty. To the public, this lighter touch will be infinitely more reasonable and legitimate than the previous enforcement techniques.

Whether it will work or not will mostly depend on how efficiently the Copyright tribunal will hear and settle disputes.

Alternatives to illegal downloading

Ironically, it is the heavy abusers who will avoid always detection. Determined downloaders are, and probably always will be, savvy enough to be a few steps ahead of copyright holders.

It is the casual downloader, or the unsuspecting parent of a teenager, who is most at risk.

Does this mean you should forgo the convenience and choice the internet provides? Not at all. You should download movies and songs legally. The music and movie industries have now realised that the horse has bolted: that they cannot simply shut the gate.

[1] Whoever provides your internet e.g. Telstra or Telecom