[Correction: this article incorrectly described the iiNet decision as a High Court decision. The article has been corrected.]
After years of mistreatment, previously loyal Australian viewers have finally discovered how easy it is to download popular shows such as Desperate Housewives, Heroes and Lost - taking back control from the local networks.
New release US programs are available for download days, if not weeks or months before they screen in Australia - with the added benefit of having the advertisements edited out. For many years Australians have been amongst the worlds most prolific downloaders and, as bandwidth becomes cheaper and home users become more tech-savvy, file-sharing has become a mainstream activity.
In light of iiNet's legal victory in the Federal Court, which found ISPs can not be held accountable for customer's downloading activities, Australia's television networks need a new strategy in the battle against illegal downloading. The question is, should they use the carrot or the stick?
US and Australian TV schedules - what history tells us
Currently Lost is screening on Network Seven's digital-only 7TWO, eight days behind the US. To further complicate things, Seven screened the initial double-episode on 7TWO on Wednesday night, followed by the first episode only on Seven's main channel - so the main channel is already an episode behind.
In order to combat online piracy, Seven Network director Ryan Stokes this week proposed simultaneous broadcasting times between Australia and the United States. While the idea might be noble, Seven's previous attempts to "fast-track" shows such as Lost were quickly abandoned.
It's obviously impractical to screen programs simultaneously in the US and Australia. For example, Lost screens at 9pm Tuesdays on ABC in the US, which would be early Wednesday afternoon in Australia. Even if Seven held off for a few hours and screened Lost on Wednesday evenings, it would leave Seven held captive to the ABC's US programming schedule. History would suggest it wouldn't take long for Seven to fall behind.
Why it's easier for some to follow their favourite show by downloading
What seems to be lost on Stokes and Seven's programmers is that Australian's don't download shows like Lost because of when they screen, but because of how they screen. All of Australia's commercial networks have a sordid history of repeatedly starting programs late, mercilessly shuffling the schedule and greedily cramming in advertising even over the top of the show you're trying to watch. The networks make it so hard for viewers to watch their favourite shows that it's easier and more reliable just to download them from the internet.
The carrot or the stick?
Free-to-air broadcasters would seem to have two key options when it comes to winning back free-to-air viewers - treat them with respect and entice them back or call in the lawyers and drive them back. Respect for viewers would require a major cultural shift from old world media giants who still think they can dictate how, where and when content is consumed. It's much easier to call in the lawyers.
With the case against iiNet in tatters, Australia's copyright police may finally decide to sue end users - despite the PR disaster that followed such an approach in the US. It's far more likely the powerful media moguls will work behind the scenes to strengthen the laws against copyright infringement.
Opponents of Australia's proposed mandatory internet filtering are concerned that the government may expand the filtering to include file-sharing, with plans for such filtering included in Communications Minister Stephen Conroy's initial trial proposal.
iiNet's legal win over the Australian Federation Against Copy Theft will also be short lived if Australia signs the Anti-Counterfeiting Trade Agreement. Negotiated in secret, the treaty may force ISPs to adhere to take-down notices and disconnect customers accused of file-sharing, or be held legally responsible for their actions.
Another big stick - the Broadcast Flag
Should the Anti-Counterfeiting Trade Agreement come into effect, US copyright enforcers may also push to revive the abandoned Broadcast Flag concept. Broadcast Flag embeds signals in free-to-air transmissions which restrict how viewers watch a program, such as disabling ad-skipping and preventing viewers from copying or even recording a program. As of July 1, 2005, it would have been illegal to sell television equipment in the US that wasn't Broadcast Flag-compatible. Had an encryption component been introduced, older or incompatible television equipment would have been rendered unless.
The United States Court of Appeals ruled that the Federal Communications Commission had overstepped its bounds in introducing Broadcast Flag and the idea was shelved. Should the Anti-Counterfeiting Trade Agreement come into effect, copyright holders may once again push to introduce Broadcast Flag.
Thanks to the US Free Trade Agreement, such technologies could also find their way to Australia. With US and Australian television locked down, and viewers living in fear of lawsuits should they download programs, Australian networks could regain their iron grip on Australia's eyeballs.
You may also be interested in Adam Turner's article iiNet defeats copyright police - good for ISPs, but bad for everyone else?