The Government's Copyright Infringement Report Has Problems With The Word 'Illegal'

A report on online copyright infringement prepared for and published by the Department of Communications says that almost half of all Australian internet users (above the age of 12, currently consuming online media) either downloaded or streamed movies, music, TV or video games "illegally" in the first quarter of this year.

Those numbers taken at face value are stunning, and point to widespread and endemic illegitimate copyright infringement by Aussie 'net users, and flagrant disregard for the rights of intellectual property holders.

The report has serious issues, though, including the rampant use of the word "illegal".

Copyright infringement image via Shutterstock

Here are the stats: the report, prepared for the Department by research firm TNS Global, presents a study of Australian internet users aged over 12 responding to a survey of their internet activity from the three months of January to March this year. 60 per cent of those users consumed one or more piece of digital content from one or more of the "four core content types" (music, movies, TV programmes and video games) once or more over the survey period -- 54 per cent streamed and 43 per cent downloaded that content. 8 per cent of users "shared" that content, with 5 per cent sharing music, 4 per cent movies, 4 per cent TV and 2 per cent video games. 86 per cent of the (60 per cent of total) consumers accessed some content free, while 47 per cent accessed all of it for free. (The report does note that free does not necessarily mean illegitimate, and paid does not necessarily mean legitimate.)

The report then goes on to estimate that 25 per cent of Aussie internet users aged over 12 consumed content illegally, with 7 per cent accessing only illegal content. Music is more likely to be accessed illegally, while TV and movies are similarly likely and video games much less so. Extending the survey base below the age of 12 and restricting it to those "who consumed content online" brings it to that almost half -- 43 per cent -- who consumed at least one piece of content illegally. That figure is made up of mostly movies (48 per cent), then music (37 per cent), TV programmes (33 per cent) and video games (22 per cent). Males are more likely to access content illegally, and those between 16 and 34 are more likely than their younger or older counterparts. All the statistics are available in the report (PDF) hosted on the Department of Communications website.

Here's the big issue: the Copyright Act, at least in its current form, does not say that it is illegal to access international versions of Netflix and other media content through VPNs and the process colloquially known as geo-dodging, as clarified by a post on Communications Minister Malcolm Turnbull's own blog. It may be illegitimate and it may be against the Terms of Service of said content provider, but it is not illegal. Similarly, the use of the world "illegal" even to refer to material downloaded that (allegedly) infringes on the copyright of a rights-holder is misplaced. It's not clearly and blatantly illegal in the strictest use of the word; it is a civil issue rather than a criminal one and one that you may be sued rather than prosecuted for, by a private party rather than a police or government body. This is an ongoing issue with government and media reporting on the topic of copyright infringement.

Similarly, the copyright infringement report calls uTorrent and Bit-Torrent "illegal peer-to-peer methods" -- that is, methods that illegal downloaders use to access copyright infringing content. Bit-Torrent is a technology company, creating software, based out of San Francisco, with products that use peer-to-peer protocols for distributed file sharing and device-to-device syncing. Nothing about that is illegal. uTorrent is a client for the Bit-Torrent protocol -- nothing about that is illegal either. Calling the technology behind Bit-Torrent "illegal" is no different to calling the internet itself illegal, because both are equally usage agnostic to the data carried across their protocols. It's like calling a car company "illegal" because their car was used by a completely unassociated individual for a ram-raid on a shop or an ATM. There is absolutely no doubt that the Bit-Torrent protocol is used for illegitimate file sharing, but that does not implicate Bit-Torrent or uTorrent in any way.

The report uses the word "illegal" 173 times throughout its 84 pages.

What is "illegal" downloading, though? A larger problem is that the report does not adequately distinguish how the survey and its analysis determine what constitutes "illegal" copyright infringement. The survey asked participants which proportion of their online content access they thought to be "illegal" or "legal", defining payment as whether they personally purchased content as a one-off or subscription and whether participants thought their access was legal or illegal. The report even says that the public surveyed were not confident whether they were accessing content through "legal" or "illegal" means through the internet. It goes on to say:

It should be noted that a large proportion of the Australian public are not confident they know what is legal and what is illegal in terms of downloading, streaming/accessing and sharing content through the internet (see Chapter 6.5). Therefore, in addition to some people being reluctant to admit to engaging in illegal activities, some people may not be aware that what they are doing is necessarily illegal, and hence the level of illegal activity may be under-reported. (Emphasis ours.)

[Department of Communications]



    Oh Campbell, there you go reading reports again and questioning the assumptions and pointing out blatant miscommunication. Isn't it ironic it's called the Department of Communications.

      Always thought "illegal" was a sick bird. or is that spelt "ill eagle".

    A Liberal report calling something illegal that isn't technically illegal? That could never happen!

      Hey, this is the Government. If they want to make something illegal, they can write legislation to MAKE it illegal!

      ... assuming they can get it past the Senate. (His Noodliness bless the Senate.)

        Legislation? That sounds like effort. Just call it illegal and people will be confused.
        You could always put a levy on it. It's not a tax per-se, but has the same impact.

    It's in the industry and the government's best interests to continue using evocative, misleading language (like 'piracy' or 'crime') to incorrectly describe copyright infringement, because those words carry with them a weight and implication of darker deeds than what is actually occurring. That makes it much easier to convince people to support extraordinarily wasteful and pointless actions like a national internet censorship.

    It's classic smearing, and it needs to be pushed back against.

    Everytime you view a website on your pc or mobile, a copy of that data is placed in your cache, also placing copies on any proxies between you and the original website/content provider. so it can be displayed... that's illegal under terms of copyright.

    Given that Australian Government copyrights everything they produce, as an Australian citizen, viewing any government document available online... including the copyright act itself and that report... it is therefore illegal to view it. Don't you love how computers work :P

      Did you even read the article? The whole point is that it's NOT "illegal"

      Last edited 22/07/15 2:32 pm

      Um, that's not how copyright works. If the method you used to access that data is authorised by the rights holder, such as streaming content from YouTube, you're authorised to make a temporary local copy of the stream... Not least because it would be impossible to view the stream locally without copying its content.

      Similarly, it's not illegal for ISPs to temporarily cache those files on a server in order to reduce their bandwidth when a lot of users are accessing that content in a legitimate way.

      Likewise, if the government produces a copyrighted work and then makes it freely available to download, it's not illegal to download and make copies of the work. That's how copyright works :P

        errrmm references? You have a way to verify this other than your say-so

          See my other reply - Copyright Act, section 43B(1).

 if you want the detail.

      Copyright Act, section 43B(1).
      " (1) Subject to subsection (2), the copyright in a work is not infringed by the making of a temporary reproduction of the work if the reproduction is incidentally made as a necessary part of a technical process of using a copy of the work. "

      So those cached copies are NOT illegal.

    I think everyone really needs to read up what the word "illegal" means.
    I'm so sick of people referring to copyright infringement as theft or expecting the police to arrest us all.
    Yes there's some grey areas where international law needs to get involved due to how civil cases and law suits work between countries, but generally it's not theft and it's not illegal.

    If you scroll down to the metrics table on page 29, you can clearly see that bittorrent only accounts for 14% of video content consumed.

    Youtube, Tenplay, 9Jumpin, ABC iView, Plus7, netflix, SBS and "google search" (whatever that means) accounts for the rest.

    14% ≠ 50%

    The report doesn't mention Kodi/XBMC, "over the top" apps, online file lockers, or usenet as methods.

    Spoiler Alert: the figures for the first quarter of 2016, 2017, 2018 and 2019 won't change.

    Last edited 22/07/15 3:59 pm

    This was prepared by a market research firm, so I'm not surprised that it's completely incoherent and very uninformative. I feel dumber for having read it.

      I don't agree the whole report has to be re-written. There are some useful and interesting insights in there, such as reasons for using paid services, reasons for infringing, and what would make infringers stop.

      Its interesting that actual overseas streaming services like Hulu or BBC iplayer weren't mentioned at all (maybe they didn't ask) and netflix appears to only releate to the Australian netflix.

        Did Australian Netflix exist in the first quarter this year?

        They will all be bundled in the "illegal" statistics.

        I would argue that some of the research is valid and useful, the report itself though: complete do-over. There's no point trying to polish a turd.

      "Principal: Mr. Madison, what you have just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
      Billy Madison: Okay, a simple "wrong" would've done just fine."

    "...the Australian public are NOTE confident..."

    Is that Campbell's spelling error or the Dept. of Communications?

    It’s not clearly and blatantly illegal in the strictest use of the word; it is a civil issue rather than a criminal one and one that you may be sued rather than prosecuted for, by a private party rather than a police or government body.

    Since Gizmodo - and through that, yourself - are seen as a source of expert commentary among the Australian tech industry and tech-inclined people in general, it's fair to assume a lot of people rely on the information you produce for us.

    So, with that in mind, what basis do you have for the above statement re 'illegal = breach of criminal law'?

      Indeed. "Illegal" means not legal. The Copyright Act makes it an infringement of copyright to carrying out any of the exclusive acts granted to the owner of copyright without the owner's authorisation. Infringing conduct is in contravention of the Act. It is therefore illegal in the same way theft is a contravention of the Crimes Act and is therefore illegal.

      (aww, shucks, an expert? You flatter me)

      Civil litigation is different to criminal litigation, since the two have markedly different consequences, and the Crimes Act and the Copyright Act are two very different things (responding to both yourself and Informed User as well). Informed User -- your argument that ties Copyright to Crime and then suggests the two have the same consequences does not work that simply. (And "illegal" doesn't mean "not legal", btw. Think of it as "legal", "illegal", and "undefined".)

      Something quote-unquote-illegal is something that you can be arrested and detained and charged and prosecuted for, something that is codified in law that it is unacceptable to do with specific consequences for doing so. It's not "legal", because it is not specifically codified in law that it is acceptable to do. The law doesn't work like that. But that doesn't mean that it's "illegal" simply because of it.

      We (in Australia more generally) use the world "illegal" a lot where we shouldn't and this is part of the problem. It's not semantics, it's misrepresentation of the consequences of an action. Uploading, sharing, that's a different story.

      I strongly recommend you read this precis from Geordie Guy on the subject. He caught me out on my own misuse of the word "illegal" about a year ago on this topic, and I've been especially conscious of it ever since.

        Thanks for the measured response - I know it's probably a minor semantic issue, but when accusing a bunch of disingenuous dickheads of using twisted, emotive language to bolster their argument, I didn't want to end up in a pot-kettle situation! :)

        I don't think that linked page really does settle it, though. All he says is:
        This is why in ordinary speech we use "illegal" to mean conduct which you can either be punished on the spot for by the police (such as a speeding fine), arrested and bought before a court (such as fraud or assault), or that a court, tribunal or other body would fine or sanction you for (such as being fined by the ACMA for sending spam or being fined by the CTTT in New South Wales for not complying with an order).

        This isn't a legal definition. It's not even a dictionary definition. In essence, he has just defined the word to mean whatever suits his argument on the basis of some unsubstantiated, undefined 'ordinary speech'.

        If anything, 'ordinary speech' would equate 'illegal' with 'not legal' - ie, contrary to an act of parliament or common law - which would inclue copyright infringement. This would be distinct from unlawful, which is an act where there is no positive legal 'permission' (for lack of a better term) to do it. This definition agrees with the OED, for bonus internet argument points.

        For a close analogue, think about a breach of s52 of the TPA (Now the ACL), misleading and deceptive conduct. A breach only avails the injured party of civil remedies, but it's still 'illegal' conduct.

        I think this potentially flows from someone getting their Venn circles confused when talking about civil law vs contract law.

        Just to be clear, I totally agree with his (and yours, and pretty much anyone who isn't pocketing money to think otherwise) position that downloading that sweet new Taytay track is not a criminal matter and so trying to conflate it with other criminal acts (ie, theft) and stupid stereotypes (piracy? really?) is dishonest at best and really shows how weak your argument is.

        Last time I looked downloading a copyright-infringing work via a peer-to-peer network was actually illegal, not just in violation of copyright.

        The Copyright Act does have criminal provisions, mostly for copying for profit or "on a commercial scale." Torrenting makes many copies of bits of the file as part of its operation, and the Attorney General's department regards this as comprising being on a "commercial scale" even if you only download one copy. (There used to be something explicit on the AG web site to this effect, but I couldn't find it when I was looking just now.)

        I'm not sure if this has been upheld in court; it does strike me as a reasonably arguable position to take.

        However, if you take a single, directly downloaded copy, you're pretty safe. That's a single copy, and only the civil parts of the Act apply.

        That link is pretty interesting. thanks for bringing it to our attention.
        Particularly liked his take on the Saints Row V censorship board review.

      Illegal in law means a crime. If there's no criminal offence, it's unlawful, but not illegal.

      Media referring to copyright infringement as illegal in Australia has long been a bug bear of mine. It's not illegal. At most, it's unlawful.

    The term "illegal" simply means "contrary to the law." It's usually used in the context of the criminal law but any conduct that is contrary to an Act of Parliament, a valid regulation or even the common law is "illegal." That includes breaching a contract or any civil matter as well.

    (I noticed jjcf just pointed that out)

    Funny thing: If you have an Australian Netflix account and accidentally logon with a VPN service running you will actually get the US site. But all your legal Australian Netflix activities will be there for you (continue viewing, Lists etc.)

      That's because there's not strictly such thing as an Australian account. You get the available content for wherever you are in the world. I was just bopping about Europe, and I had my Netflix on my phone - changed a reasonable amount between country to country, and didn't work at all if I was in a country where Netflix wasn't available. So you'll get whatever content for wherever your VPN is telling your Netflix you are at.

    "hence the level of illegal activity may be under-reported."

    Classic! "People don't understand the question so there must be more of them doing it" Or could it be that people think what they are doing is illegal when it isn't, in which case the numbers are over-reported!

    "interviewing was subcontracted to Q&A, a Brisbane based full service resource
    supplier to the market research industry"

    So all the survey participants were from Brisbane?

      By the looks of it they used a mainly an internet poll service with some extras via phone. According to the survey the determined their sample was only 75% representative of all Australians aged 12+. However I would expect that to be even lower as they used the website to do the survey which incentives people with rewards and I didn't see anywhere in the report how this might impact their sample.

    The people have spoken. Sharing is here to stay.

    Also, I'd love to see the courts try to process a million people at a time, for watching a movie or listening to a song.

    Since we're all arguing over semantics. ..

    @campbellsimpson was using the term 'illegitimate' to define content that was obtained without being paid for, or obtained by a method contrary to the terms of the content provider. A synonym for illegitimate is 'bastard'. So therefore, if you pirate, you're a bastard. QED

    Of course if u wanna be the techy about it ya.

    Lets just call it an "umbrella term"

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