Andrew Colley, piracy, the Hollywood machine, and copyright as a moveable feast

It's impossible to count the ways the intertubes has facilitated piracy, or just common disregard of intellectual property rights.

What's the likely odds, for example, that The Paunch, Chairman Rupert's entry into the field of blogging, has contacted the owners of the rights to The Young Ones, and obtained the right to run a clip from the show as a way of introducing their Punch on: Open thread for this second day of November in the good lord's year 2009, seeing as how it's a show which first aired in 1984? Lordy, the owners don't even need the 'house of mouse' extension to argue their rights.

Sure The Paunch has just embedded a link to YouTube, but that's no excuse in the eyes of the law, and in any case, what's the chance that the supplier to YouTube obtained a clearance, including The Paunch as a legitimate third party user?

Is the YouTube user name NotinterestedThanks an indication? Perhaps there's something in the accompanying commentary on The Paunch that justifies the usage? You know, like fair comment, or a review of the show in which case the clip might be illustrative of a point?

On this day in 1936 Benito Mussolini mentioned the “Berlin/Rome axis” in a speech, a term which would be used to describe the “Axis powers” led by German, Italy and Japan in WWII.

Well not sure you could call that a sufficient reason or excuse to run Alexei Sayle doing his Mussolini routine, as opposed to just another blatant, casual rip off of someone else's property rights. In this case that notorious, infidel the BBC which is ruining everything for everyone, or at least Chairman Rupert and son James.

Guess the question of ancillary rights has to keep floating in the ether, and the notion that Chairman Rupert and his minions support the free and easy treatment of intellectual property rights will have to keep swinging in the breeze with it.

Meantime, Chairman Rupert and his minions froth and fume about the abuse of their content, and secondary linking by the likes of The Huffington Post as a betrayal of their rights.

The reality? These days none of the big institutions rigorously check for rights and obtain appropriate clearances. Journalists hop on to the intertubes, garner what they need, and go with the story. Only when they're doing a story for a hard copy format do they pause, and either resort to in house facilities or a rights-cleared supplier. On line, they're part of the anarchy.

Which makes it all the funnier - in a post modernist ironic sense - when you read an article like Andrew Colley's Hollywood attacks piracy as ISPs ignore safe harbour.

No doubt inspired by the loss and suffering of Chairman Rupert's noble Twentieth Century Fox, Colley sees it as perfectly logical for the major Hollywood studios to single out and beat up iiNet in court:

There's a strong argument that the Australian internet industry knowingly left the studios with no choice but to bring what they knew would be an unpopular case against an ISP.

No choice? And no choice to beat up iiNet, as opposed to say Telstra or Optus, that might have a little more cash and a little more grunt if it came to a showdown in court?

Well if you believe that, no doubt you go around on a daily basis pulling the other one. But Colley thinks that singling out iiNet is just the way it goes:

It may be unfortunate that iiNet drew the short straw, but it's clear the legal planets that bought the trial to being have been lining up for a long time.

It's hard to see how the Internet Industry Association could not have seen it coming, and equally difficult to see how AFACT had any choice left.

Unfortunate? No choice left? It's all down to choice? Well can I have the chocolate topped doughnut with jam in the middle? And a dash of Alexei Sayle on the side?

Here's how Colley earlier in his piece poo poohed conspiracy theorists:

The fact that iiNet has been singled out has prompted plenty of dark conspiracy theories on the internet, and observers around the world are keeping a close eye on the case.

In fact, the internet community's collective bile duct has been working overtime to generate hundreds of shrill Tweets and forum posts that barely stop short of calling for war against Hollywood.

"Do we sue carmakers for road accidents?' is typical of the intuitive logic of the backlash.

For bearers of this logic, a negative outcome for iiNet would be such an egregious miscarriage of justice that CBS Interactive technology journalist Liam Tung went so far as to compare the case with Arthur Miller's fictionalised account of the Salem witchcraft trials in The Crucible, inspired by McCarthyism in the 1950s.

Well in my experience of playground bullying, the way the clever bully works is to pick out someone not their size, someone conveniently smallish - not so small that it looks utterly cowardly - and then sets out to give them a good thrashing, knowing that the chance of any kick back has been minimized. And everybody else stands quietly by, and watches the fight.

Meantime, Colley takes this logic to a point of quintessential absurdity:

But if that's the case why are the likes of Telstra and Optus quietly standing by and letting iiNet go it alone?

What? They should confess that they too are lawbreakers, providing carriage and safe haven to pirates, and so should be enjoined in court with iiNet so they can stand solid together, loudly proclaiming their innocence in a bold love-in worthy of the summer of love in Haight Ashbury?

Well whenever I read an article like this, I'm immediately inclined to download a bit of intellectual property belonging to someone else, or I dream of toddling off to the video store to rip a movie.

In this fantasy, I always prefer to rip Twentieth Century Fox material, because of course I only use the material for time slippage purposes and then I destroy the copy, not circulating it to any third party.

And you know what? Strange how dreams can come true ...

I keed, I keed. In neither case does the piracy necessarily involve bit torrent, because these days in the virtual and the physical worlds, there are so many ways to pirate copyright material that they're impossible to tally. Which is why there are so many high quality Blu-ray movies now available online, the pearl having been dislodged from the allegedly impregnable security protected oyster.

The studios are pursuing the grail of bit torrent as the solution to all their woes, which is a bit like pursuing Moby Dick as a way of ending nightmares about white whales. Because these days pirates are making money out of alternative ways of distributing product that if the studios had half a clue would have been turned into their own money-making models.

As usual, the studios are out of date and out of touch, and the hordes have already moved on.

And when Colley writes that it's difficult to see how AFACT had any choice left, that's when I begin to see red, because at the heart of all this nonsense is the advice given by lawyers, and when you seek the advice of lawyers in this context, you get stupid advice. Resulting in juicy legal fees and expensive court cases.

The kind of advice that saw the studios introduce regional zoning in an attempt to protect the old territorial tiered releasing structure.

And all that meant is that in countries like Australia, the Chinese supplied multi zone players, and Americans were cut off from international product. Sure you might get the irritation of a rights protected player on a computer demanding that you change the region coding on the player, but then you just use another player on the computer.

So what's been accomplished? The market flowed another way, and all the studios had as a result of their attempts to restrict their customers is a residual sense of irritation that they should try to halt purchasing product from Amazon in the US (where was Bob Carr when this was going down? Why does the Australian publishing industry think it should imitate American studios?)

Remember the grand old days of macrovision on VHS tapes? Now easily circumvented by video stabilizing devices, legally purchased, but who cares?

Do the studios really believe that they'll achieve victory, whatever that might be or mean, even if they have a win in the iiNet case?

Well you can believe that if you like, but I'd no more believe it than believe that The Punch obtains appropriate clearances for all the third party material deployed on its site.

It was awhile ago that I took a look at the heartwarming tale of Jim and Bob, as enunciated on a Fox dvd (here), and as the days pass, the evidence mounts that the studios still don't have a clue about how to deal with or trust their customer base, so long accustomed have they been to the sheep placidly lining up in a queue to be shorn.

Well if they locked up all the internet breachers of intellectual property rights, there wouldn't be an online user who could stay out of jail. And Chairman Rupert and his minions would also find themselves in the lock up. Poignant, but true ...

(Below: will the coarsely dressed working class looking Jim ruin his social gathering by running a pirate video, or will nice looking Bob? You guess, but first put yourself into the mental idiocy of the team who thought putting this kind of nonsense on a DVD would beguile customers into the straight and narrow.

And below that, an xkcd cartoon. More xkcd here).