There’s little sign that the global copyright war will let up any time soon. Wherever you go, the content industries are working hard to secure stronger “protections” for intellectual property and tougher penalties against those who infringe against these protections. Given the forces they can bring to bear – an army of lobbyists and an ocean of cash – it’s not surprising that industry has won many of these battles.

Australia is one front in this war, and several notable skirmishes have occurred in recent times. The most significant has been a case in which the movie studios, represented by AFACT (the “Australian Federation Against Copyright Theft”) sued Australia’s third-largest ISP, iiNet, for authorising copyright infringement by allowing its users to download movies using BitTorrent.

Under Australian copyright law, a third party can be held accountable for a breach of copyright if they are found to have authorised the breach by “countenancing” it and providing the means to do so. This was tested in the courts in 1975 when a university was found liable for breaches of copyright because it provided a photocopier which students could use to make copies of books.

Bringing this suit against iiNet was a clear attempt to make ISPs liable for the content traversing their networks and is a probable first step on the road to introducing a graduated response mechanism to Australia. The ultimate outcome of the case will have enormous repercussions for the future of the industry and copyright law in Australia.

Fortunately, the signs have been positive so far. AFACT initially lost the case, with a heartening judgement by the trial judge, Justice Cowdroy, who even took AFACT to task for misleadingly using the word “theft” in their name. Justice Cowdroy found that the ISP had not authorised the infringement because they did not provide or operate BitTorrent; and even if they did, could fall back on the safe harbour provisions of the Copyright Act.

Unfortunately the content industry were not willing to let things be, and despite already losing one appeal so far are set to take the case to the High Court. Should iiNet eventually be found liable, it will precipitate a seismic shift in the way ISPs operate and could usher in an era of greater monitoring and punitive measures for alleged infringers. The industry are clearly hoping for a “three strikes” system. It’s unlikely this would affect industry revenues, but Australian internet users would surely suffer from this lack of due process.

One of the more ridiculous but high profile cases involves two well-known songs with Aussie themes. Larrikin Music vs EMI is a case in which, for once, a large music publisher is on the receiving end of an overreaching copyright claim. Larrikin is a small company that owns the copyright to a well-known folk song, “The Kookaburra Song”, which was composed in 1932 for a contest being held by the Victorian Guides. They claim that their song was plagiarised in the opening flute riff used in the 80’s classic, Men At Work’s “Down Under”.

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It was widely reported yesterday that Facebook have released some new security tools, including a reporting mechanism that allows kids to report an incident of bullying to a trusted adult. This initiative is parted of Facebook’s revamped Family Safety Center and came directly as a result of Facebook’s involvement with the White House Conference on Bullying Prevention.

It’s widely acknowledged that online bullying is a serious problem kids face today, and so reaction to the move has been largely positive, if mixed. On JJJ’s Hack program yesterday, QUT’s Marilyn Campbell suggested that the move was all well and good, but

I think that sometimes there’s a false sense of security when you have a kind of technological solution like this. Kids actually don’t tell adults, because one they don’t want the technology taken away from them, and two a lot of kids who have told an adult – the bullying actually gets worse. I would think that kids would think, “Ah, if we told an adult, the cyber-bullying actually could get worse.”

The program then followed up with a grab from me suggesting that that social networking may help kids build up resilience. I do think that, but I think some context is in order, and I’m not sure Dr Campbell’s assertion above may be borne out by the evidence.

A couple of weeks ago I attended an event around Child Protection and the Internet at the Oxford Internet Institute and got to hear about some very interesting research lead by the LSE’s Professor Sonia Livingston, who has long been working in the area and is a director of the “EU Kids Online” project, which researches the online activities of European children. Their recent report, “Risks and Safety on the Internet“, surveyed 25,000 European kids and their parents about risky online behaviour such as exposure to sexual content, sexting, cyber-bulling and meeting online contacts in the real world.

The report’s findings around cyber-bulling are fascinating. Firstly, cyber-bulling is just a subset of bullying. While 19% of kids said they’d been bullied in the last 12 months, only 6% said this happened to them online.

Secondly, cyber bullying does seem to upset kids: Of those kids who were bullied online, about half (55%) said they were left either very upset or a fairly upset by the experience. However, a large majority (62%) reported that they “got over it right away”, and only 8% said it took them weeks or months to get over the experience.

Thirdly, and perhaps most encouragingly, kids aren’t keeping it to themselves. 77% of kids reported telling someone about it – friends and parents being the most common (52% and 42% respectively). The report notes that this might explain why parents, when surveyed, were generally pretty accurate in their assessments of whether their kids had experienced online bullying. This would seem to suggest that a “tell an adult” button might actually be something kids use. I think this is counter-intuitive, but a nice change.

Perhaps the numbers in Australia will differ greatly from Europe; we’ll have some indication soon, hopefully, as Prof. Livingston told me researchers at Edith Cowan University are conducting a smaller study here using the same questions. In the meantime, the thoroughness of this research means we shouldn’t discount it.

The most important thing to remember is that cyber-bullying is just bullying. Unlike some lawmakers, kids don’t see a firm distinction between the nasty comments they receive via IM and the ones they receive in the schoolyard. After all, the perpetrators are usually the same people. So looking for a technological solution is always going to be a band-aid at best. The internet is how we communicate these days, but does little to change the social dynamics of the schoolyard. That’s not something Facebook are going to be able to change.

Rather than excluding younger kids from social networking, the evidence would suggest the risks are balanced by the benefits and that any upset kids to experienced is by and large easy for them to shrug off. Allowing them to participate – and, yes, build up resilience – may do more to help them than shielding them from dangers that are often exaggerated in the minds of adults.

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Late last year I testified before the Senate Environment and Communications committee inquiry into Protection of the privacy of Australians online. It was an interesting experience, and it’s also interesting to read oneself in Hansard afterwards (all the while resisting the urge to edit the document and rephrase things).

Here’s an extract where I have a go at Australian politicians and their poor history of internet regulation, and restate the idea that the internet is still a new frontier when it comes to law. I’m not sure about my “profanity happens” line – it does sum up the net rather well, but now it’s recorded forever in the Parliamentary archives.

CHAIR— All right, I will kick off. What is the reason for the ‘frontiers’ in the name Electronic Frontiers?

Mr Jacobs— We were founded in 1994 so at that time the intersection of the online world and public policy was a new frontier.

CHAIR— Let us go straight to that. It is now not a new frontier but—and you may have heard my question earlier—are we still, nonetheless, trying to apply offline policing and thinking online?

Mr Jacobs— I would say, generally, yes.

CHAIR— Examples?

Mr Jacobs— Censorship, for instance. Our censorship system is based upon classification. Work is submitted to the Classification Board, which decides which classification it fits into.

CHAIR— ‘Our’—do you mean your industry?

Mr Jacobs— I mean Australia’s.

CHAIR— Right.

Mr Jacobs— Now the government proposal to implement mandatory ISP filtering in Australia means they want to filter web pages based upon their classification—to wit, whether it would be refused classification or not. When a finite number of DVDs are being imported into the country every year—there are some thousands —it is possible to review them all in timely fashion and make a determination that is public. But when it comes to the web, which is international and dynamic and contains content upwards of a trillion pages, that is never going to work. However, that is the approach that the government is taking. We think we need to really go back to the drawing board and have a rethink about how that could be done.

CHAIR— Does your organisation think there is a way to get the policymakers to get with the program?

Mr Jacobs— Yes and no. Clearly, as policymakers tackle these issues and become more and more comfortable with how the internet works, the obviously silly proposals at least will become fewer. But that does not mean there are any easy answers. I am sometimes asked: ‘Well, if you can’t block these web pages this way, what can you do? What do you do when somebody goes onto Facebook and defaces a tribute page to a slain child with offensive material?’ I believe it was Senator Xenophon who suggested an internet ombudsman who could look into these sorts of things. That is not going to work, just because of the way the internet is. So what is the answer? How do you deal with that? Unfortunately, I have to say that maybe that is just the price we pay for the benefits that we reap from the internet.

CHAIR— So profanity happens occasionally.

Mr Jacobs— Profanity happens. Offensive behaviour and offensive material happen.

CHAIR— All right. That takes me to the next part of the same question. Is it part of your observation, then, that since the birth, I guess, of your organisation and the move to embrace technology we have in some way compromised what we might otherwise regard as our right, as individuals, to privacy?

Mr Jacobs— Not all of the encroachments on privacy have been the result of a failure of government policy, by any means.

CHAIR— No, it may well be as a result of an individual like me—

Mr Jacobs— That is right. I think it will be a part of the future landscape that privacy will be different from what it has been in the past, and there will be less of it. It is almost inevitable. We get huge benefits from giving up our privacy sometimes: the ability to use social networking or to use tools that take information about you and then give you a service in return based upon where you are, what you like or who your friends are. These are great. They have huge impacts on productivity. The number of people using Facebook attests to the fact that people really love that sort of thing. So it is going to be voluntary, in a large measure.

(My piece over at the ABC today.)

Before it came along, we were served by a revolving series of moral panics, changing censorship ministers and a patchwork of different state systems. Many books and films were banned that today would hardly warrant a mention – I wonder how many high schools would not allow “The Trial of Lady Chatterley” a place in their libraries? In the sordid history of censorship in Australia, the creation of a national system under the Hawke government in 1984 at least gave us something that was uniform and understandable, and led to a slight loosening of a system that was much more puritanical than the citizens it served.

Our classification code has done its duty for these last 30 years or so. As a reward, it deserves to be given a nice cup of hot chocolate, and wheeled outside to enjoy the sunshine of its retirement.

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The Wikileaks saga continues to captivate the public imagination. The drama around Assange and his arrest, the fascinating leaks, and the cyberpunk-style internet war that is raging in the background means this is the story that just keeps on giving. And it’s not just geeks that are soaking up the news – it’s everybody. This will have a huge impact on future debates on civil liberties online.

Though Wikileaks has done only what journalists have been doing for time immemorial, the backlash against them – and Julian Assange personally – has been massive. First came the outrage. The vociferous condemnations, encouragements to assassination, the hunt to find a legal pretext to lock him up, all came thick and fast as the latest round of leaks began. Our own Prime Minister was quick to label Wikileaks a criminal organisation, despite no laws being broken or charges filed.

Next came the legal and financial attacks. Web hosts were forced to sever ties with Wikileaks. Politicians in the U.S. put pressure on web hosts and payment processing companies such as Paypal, Mastercard and Visa to stop providing service to Wikileaks and throttle their ability to operate. Even a Swiss Bank cancelled Assange’s bank account because he used his Swiss lawyer’s address instead of his own.

The last phase will be legislative, as embarrassed Governments scramble to make laws that would ensure they can lock somebody up – if not now, then next time. Already, a bill has been introduced into the U.S. Congress that would allow the U.S. Government to prosecute Assange under the Espionage Act. Our own government may well be pondering a similar course of action; several times we have been told that they are scouring the law books for something, anything, with which to charge Assange.

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