As we look down the barrel of a copyright crackdown, with cabinet meeting about several legislative changes on Tuesday, many might be unaware of the fact that it isn't actually a crime to download movies and TV shows without permission or payment in Australia. 

It may not be ethical and downloaders might be sued for copyright infringement, but there are no laws that criminalise Australians downloading and watching content for their own individual use. 

"It's not illegal," Electronic Frontiers Alliance executive officer Jon Lawrence told Fairfax Media.

"Downloading something like Game of Thrones without paying for it is a breach of copyright but if you're not doing it on a commercial scale, it's simply a civil issue and it's the copyright owner's problem if they want to come after you."

Words such as "stolen" and "theft" are often bandied about in movie torrenting conversations. At the Village Roadshow annual general meeting in August this year, chairman Robert Kirby labelled it exactly that.

"Plain and simple, it is theft. No one would go into a bookstore and walk out with books under their arm. The Australian government has indicated strong support for introducing legislation which we anticipate will be in the next few months," Mr Kirby said.

While few would celebrate depriving content creators of income, Mr Kirby's classification of downloading does not square with the legal definition of theft. This requires permanently depriving the original owner of the item.

Digital activist Geordie Guy has been a long-time crusader for clarity on the legal issues of watching downloaded content and dismisses the idea of downloading as theft out of hand.

"When you pirate something you make a copy of it against the wishes of the copyright owner, but they are still capable of making copies and selling them themselves, so it's not theft," Mr Guy said.

He added that just because there is no law specifically condoning the activity doesn't make it illegal either.

Attorney General George Brandis himself has raised the lack of Australian legislation that would make torrenting television programs or movies illegal.

"Unlike the United Kingdom, New Zealand, Canada, the United States, France and many other comparable countries, Australia lacks any protection against online piracy," Mr Brandis said at a Senate legal and constitutional affairs legislation committee in May 2014.

Why is downloading so common in Australia?

The reasons Australians download content outside of approved channels vary. But the main reasons include the delay and additional costs Australians face in an increasingly global entertainment environment.

Research released by consumer group CHOICE in September 2014 revealed Australians can pay up to 400 per cent more for some subscription television content: 261 per cent more on iTunes 219 per cent more on Google Play and 426 per cent more on Foxtel Play.

Gauging the rate of pirated downloading is difficult. Foxtel estimates more than 500,000 Australians downloaded popular television show Game of Thrones outside of approved channels in season three. 

Foxtel has around 2.5 million subscribers. But the millions without it avoided spoilers until the program could be downloaded in iTunes or QuickFlix a week later. Apparently, half a million decided not to wait.

More than 90,000 Australians torrented the final episode of Breaking Bad within 12 hours of its US screening for similar reasons.

Next year, those without Foxtel won't be able to see any episode of Game of Thrones on local streaming services until the whole season has finished. 

CHOICE has lashed out at the subscription TV service, saying it only has its own "outdated business model" to blame for restricting ways to view the program.

"There are few choices. If you want to watch Game of Thrones for example, Foxtel is the only place to go," Choice spokeswoman Erin Turner told ABC's 7.30.

"It expects people to pay for a whole range of products when they may want one. You're getting Real Housewives of every city, rather than just Game of Thrones, which you want."

But it is not just shows locked up by subscription services that are pirated. The BBC's latest Doctor Who series is screened on the ABC at 4.50am on Sunday mornings in tandem with the UK screening, and then again on Sunday night.

Despite this, more than 13,000 Australians attempted to torrent the program before its official launch.

It's not a crime so what are the consequences?

Downloaders can still be sued by copyright holders and ordered to pay potentially thousands of dollars to rights holders.

The relevant legislation is the Australian Copyright Act. Passed in 1968 and written in an era when the internet was little more than a crazy dream, it was crafted to outlaw the smuggling of pirated videos and later DVDs.

This means the legislation targets only the traders and traffickers of pirated content, and requires "commercial scale" to become a criminal offence.

Michael Williams is an intellectual property lawyer and partner at leading law firm Gilbert & Tobin. He told Fairfax Media if sued, downloaders might have to pay tens of thousands in damages.

"No one knows what the damages could be," Mr Williams said. "In Australia, rights owners have been very busy establishing the extent of liability for uploaders and sharers rather than downloaders."

While Australia does not have the $26,000 in statutory damages per infringement written into American law, there would be a risk of significant punitive damages for "inveterate downloaders" if studios chose to pursue them.

On top of legal fees, anyone sued by content owners would need to pay compensatory damages for what they have watched but also punitive damages, which are uncapped.  

"Australian courts can add damages for flagrant infringements and have historically done so in commercial matters," Mr Williams said.

"Australian courts may think a deterrent message needs to be sent and unlike some other jurisdictions which have statutory damages, there is no specific maximum liability in Australia."

Why aren't Australians sued more often?

The only remedy available under current legislation is for content producers and owners to pursue individuals in civil courts.

Even in the United States where content owners have considerable more legal redress, this still isn't common. Mr Guy attributes this to the difficulty inherent in such cases.

"Record labels and movie studios are aware that suing their customers isn't astonishingly good PR and proving the cases is actually harder than you'd think. Rolling up to court with a big list of IP addresses can result and has resulted in accidental suing of dead people, technology illiterate grandmothers and university laser printers."

The first Australian case of this kind was launched by the creators of the movie Dallas Buyers Club in October 2014.

The production companies involved applied to the Federal Court of Australia to ask local internet service providers such as Telstra, Optus and iiNet to reveal the identities of downloaders.

The case could see Australians who downloaded the content without permission or payment fined up to $5000 if the case is successful.

Australia's second largest ISP provider iiNet announced it had no intention of sharing such details unless compelled by law. The hearing is scheduled for February next year.

Are there solutions?

iiNet's chief regulatory officer Steve Dalby told Fairfax Media there are more effective ways to solve the Australia's appetite for downloading movies outside the licensed channels.

"Australia absolutely has a problem with downloading but it can only be really solved by the supply side of the equation," Mr Dalby said.

"The content owners are trying to force new legislation to make carriers, such as us, culpable for the offences of others. It just doesn't make sense."

Survey after survey shows most downloaders would happily pay for content, even though research by consumer group Choice found Australians are charged as much as four times as much for content.

For example, according to research conducted by music streaming service Spotify, downloading copyright infringing music has dropped by 20 per cent among their Australian users since their launch.

Australian Digital Alliance executive officer Trish Hepworth agrees the most effective way to discourage Australians from pirating content is to fix the supply issues by making it more accessible.

"We have a bad habit of piracy but we still get things much later and we still pay more per head. Australians are prepared to pay more for content than anywhere else so it's not a stretch to say that we'll turn to legal options when they're available," Ms Hepworth said.

Ms Hepworth represents the copyright owners and users in Australia. She says what is known of the government's new plans to curtail infringing downloads is "highly problematic".

"It is unclear what the legislation change would actually do in effect and who it'll hit. It could catch up schools, universities and even public providers of wifi and make them responsible for other people's copyright infringement."

Ms Hepworth said the lack of enforceable options, such as limited fines and the legal and commercial complexities of pursuing individual downloaders should also be addressed.

She particularly wants to see new campaigns such as targeting the sites Australians use to access the content.

These companies are copyright infringing on a commercial scale. Ms Hepworth believes campaigns to educate users about these sites and also to starve these sites of advertising, their main revenue stream, could be positive.

Other mooted plans for limiting downloading content include blocking content aggregating sites, and one activist has even suggested setting up a separate and specialised court for pursuing the matter.

"I completely agree with rights owners that further action is needed. But history shows any 'quick fix' to the internet will be bypassed swiftly," Ms Hepworth said.

"I think education could be more powerful, especially when it comes to getting more money to creators who are being deprived of legitimate income."

smh.com.au