opinion Forget ‘three strikes and you’re out’; Internet users in the US are about to have a total of six warnings about downloading pirated content before their ISPs get fed up with them and disconnect their broadband connection for good. But could such a scheme ever be implemented in Australia?
“The entertainment industry and major U.S. Internet Service Providers have concocted a new “six strikes” plan to combat, educate and punish people sharing copyrighted files online. Major entertainment companies including EMI, Sony Music, Sony Pictures, Twentieth Century Fox, Universal Music, Universal Studios, Walt Disney Studios, Warner Music, and Warner Bros. are betting that the new process could reduce illegal file sharing by as much as 70 percent.”
ISPs who have signed up for the plan so far include AT&T, Cablevision, Comcast. Time Warner, and Verizon. In addition, the Obama administration has backed the scheme, publishing a message of support on the official White House Blog and describing the six strikes deal as “a positive step”. “To win the future and succeed in the global economy, it is critical to protect the intellectual property of America’s innovators and creators,” wrote Victoria Espinel, US intellectual property enforcement coordinator.
Leaving aside the question of why the US even has a government official with the title of “intellectual property enforcement coordinator” and avoiding like the plague the issue why anyone would use the phrase “win the future” in any context, is it possible that a similar ‘six strikes’ policy could come to Australia?
Personally, I’d make two observations about this question.
Firstly, it would be much easier to get such a policy across the line in Australia than in the US, if did end up being proposed publicly by an organisation such as the Australian Federation Against Copyright Theft, which represents many of the same studios mentioned above. Unlike the US, Australia has only half a dozen major ISPs, and most of those are already committed to forwarding on copyright infringement notices directly to their users. Some of then — such as Exetel — even already have a ‘three strikes’ or similar policy.
AFACT would only need to get one or two major ISPs on board to demonstrate a level of industry support for the scheme which could see the Federal Government jump behind it and start pressuring the rest. Communications Minister Stephen Conroy has made his feelings about illegal file sharing known a number of times, and we have a feeling he’d love the chance to support a ‘silver bullet’-style industry backed scheme in this line.
In addition, as we’ve seen with the implementation by Telstra and Optus of the Interpol child pornography filtering scehems over the past month, Australian ISPs are not shy about quietly introducing major new changes to the way they provide broadband services to their customers. And it’s even possible that AFACT’s recent heavy-handed push to open the file sharing issue with ISPs again over the past couple of weeks represents the opening stages of an attempt to import the six strikes ideas into Australia.
However (and secondly), there is a big fat obstacle in the way of anyone who wants to introduce a ‘six strikes’ or similar policy in Australia, at least in the short term: iiNet’s high-profile legal struggle with AFACT.
The case, which is expected to hit the High Court later this year, is being watched closely by everyone in Australia’s ISP industry. It’s being viewed as a test case that will lay down guidelines about how ISPs need to deal with the content industry’s issues with online copyright infringement. And right now, it could go either way.
Sure, iiNet has beaten back AFACT and its big media backers several times in the case’s first verdict and its first appeal. But the ISP has also sustained wounds as well, with the recent appeal and comments made by a dissenting judge potentially opening the door to legitimising copyright infringement notices, if they’re supplied to ISPs in the right way. AFACT looks to already be using that precedent to flex its muscle in discussions with ISPs, and the Internet Industry Association is planning a revised industry code on copyright infringement as a consequence.
In short, until the iiTrial is settled, it’s going to be hard for anyone in Australia to make the case that a ‘six strikes’ policy is the right one. The matter is already being debated in an open courtroom, and until the case is settled, very few Australian ISPs are likely to want to sign up for a voluntary industry approach, when an iiNet victory may deliver them a much stronger bargaining hand with the content industry.