Village Roadshow accuses Google of demonstrably 'facilitating crime'

Film producer believes it would be squished by Google's lawyers, but wants the option to sue to remain available thanks to a lack of safe harbour for service providers in Australia.

Village Roadshow does not want service providers in Australia to gain safe harbour provisions under the Copyright Act, and believes the current pending changes to the Copyright Act that extend the provision to educational institutions and organisations assisting people with a disability, goes far enough.

Writing in a submission to the Senate Standing Committees on Environment and Communications, the film production company's co-executive chairman Graham Burke saved special treatment for Google.

"Village Roadshow however urges that there be no further amendments to safe harbour and in particular there is no advantage to Australia in extending safe harbour to Google," Burke wrote. "It is very unlikely given their size and power that as content owners we would ever sue them but if we don't have that right then we stand naked.

"Most importantly if Google do the right thing by Australia on the question of piracy then there will be no issues. However, they are very far from this position and demonstrably are facilitating crime."

In response, a Google spokesperson told ZDNet the company takes the fight against privacy seriously.

"We have invested tens of millions of dollars in tools and systems that help fight online piracy, including on Search. We down-rank sites in Search that have a large number of valid DMCA notices and ban pirate sites from our ad network," the spokesperson said.

"On YouTube we have invested millions of dollars to create Content ID, an automated system that scans uploaded content against more than 50 million reference files to allow videos to be managed by the content's rightsholder. Content ID is highly effective and today over 98 percent of copyright management on YouTube takes place through Content ID, with only 2 percent being handled through copyright removal notices."

Ever since the Australian parliament passed laws in mid-2015 that allow rights holders to obtain a court order to block websites hosted overseas that are deemed to exist for the primary purpose of infringing or facilitating infringement of copyright, Village Roadshow has been a regular in the Federal Court.

Burke was effusive to the government for his help.

"As Australia's most committed producer of feature films we are forever grateful for what the government has done to support us with site blocking," Burke wrote. "Simply stated Australia wins and the only losers are pirates who pay no taxes, employ no one, and will destroy our local production industry.

"It is important that just as we are receiving favourable assistance that we extend total support for what is a good government initiative."

The Department of Communications and the Arts said it was taking an iterative approach in extending safe harbour, and was keeping an eye on reviews being conducted in the United States and Europe, even though it is unlikely the jurisdictions will roll back safe harbour, or when their reviews will be complete.

In its submission, Google said a lack of safe harbour extended to online service providers is holding back Australian business, and could leave the country in violation of the Australia-United State Free Trade Agreement.

"As Australia works to implement meaningful safe harbour reform, it would be a mistake to exclude commercial services providers, that aren't also carriage service providers, from the scope of the safe harbours," the search giant said. "Australian startups will be in a significantly disadvantaged position in the global market if other countries reciprocate with their own schemes that cover their domestic telco industries only and leave Australian-based startups and service providers outside the scope of international safe harbour systems.

"In the event that the committee doesn't recommend the broader application of the proposed laws or the Turnbull government fails to implement such recommendation, then the big losers will be Australian startups, the people they employ, and ultimately the Australian economy."

One company on the receiving end of a lack of safe harbour is Redbubble, which lost to Pokémon Company International in the Federal Court in December, and put forward that Australia follow the model of the Digital Millennium Copyright Act.

"In Redbubble's experience, the DMCA framework provides an extremely efficient process for removal of problematic content from the website and fosters collaborative relationships with content owners," Redbubble CEO Martin Hosking wrote. "Redbubble is therefore disappointed that this framework has not yet become part of Australian law, putting Redbubble at a disadvantage to its offshore competitors."

In October, the Joint Standing Committee on Treaties was told that Australia's current safe harbour legislation would leave the country in breach of its obligations under the Trans-Pacific Partnership.

"Each party shall ensure that legal remedies are available for right holders to address such copyright infringement, and shall establish or maintain appropriate safe harbours in respect of online services that are internet service providers," Article 18.82 of the original TPP said.

A reformed TPP with 11 member states was agreed to last month.