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?

PCWorld tells us:

“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.

Right.

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.

Image credit: kwschenk, royalty free

Related posts:

1. MIPI wants Aussie ‘three strikes’ BitTorrent law
2. AFACT issues BitTorrent warning to ISPs
3. Secret BitTorrent agreement on the cards
4. No minutes taken at secret BitTorrent meeting
5. Attorney-General’s Dept seeks BitTorrent advice

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1. Graham
   Posted 10/07/2011 at 2:20 pm | Permalink | Reply

   I think before they can even think of doing something like that, there needs to be an alternative. I use a VPN to watch netflix, and I haven’t downloaded a Torrent since I got the service.

   Australia needs to get with the times before they start applying the rules of other countries that have useable alternatives.

   • Renai LeMay
     Posted 10/07/2011 at 2:24 pm | Permalink | Reply

     +1

   • Tezz
     Posted 10/07/2011 at 7:11 pm | Permalink | Reply

     +2

2. Simon
   Posted 10/07/2011 at 8:01 pm | Permalink | Reply

   Problem is .. the evidence doesn’t show the presence of legal options reduces piracy levels at all.

   Netflix’s meteoric rise to being the single biggest source of peak downstream traffic in North America for 2011 should see a corresponding drop in bittorrent traffic right? As all those pirating see the light and adopt the legal way. Here are the year-on North American figures:

   fall 2010: Netflix: 20.61% Bittorrent: 8.39%
   http://www.sandvine.com/downloads/documents/2010%20Global%20Internet%20Phenomena%20Report.pdf

   spring 2011: Netflix: 29.7% Bittorent: 10.37%
   http://www.wired.com/images_blogs/epicenter/2011/05/SandvineGlobalInternetSpringReport2011.pdf

   Wait .. we’ve seen a 10% increase in Netflix traffic .. AND .. a 2% increase in Bittorent traffic.

   Looking at it globally (again, all figures available via the Sandvine reports), for the last 3 years, downstream bittorrent traffic hovers around the 18-20% mark – despite the huge gains in traffic made by Hulu, Netflix and others. Seems to me legal sources are additive to the viewing mix, but are no solution to dropping piracy in itself.

   • Tezz
     Posted 10/07/2011 at 8:19 pm | Permalink | Reply

     Problem is .. the evidence doesn’t show the presence of legal options reduces piracy levels at all.

     Are you arguing against these options because they don’t seem to be making much impact over in the US?

     Because that’s not the point, the point is that currently these options aren’t available, if you make them available then suddenly people won’t have so many issues with the 6 strikes policy, because point simply if you get caught out it’s not then like you didn’t have a legal option you could have used.

     • Graham
       Posted 10/07/2011 at 8:33 pm | Permalink | Reply

       @Tezz – Exactly what I was going to say. With services like Bigpond and Apple TV (have both, as well as Boxee box with Netflix) movies cost around 5 dollars to rent, Netflix is a flat 8 dollars a month. People have to have alternatives and Australian companies need to fill that gap. Blocking everything isn’t going to force me into a Blockbuster, it just means I find semi-complicated ways to send my money to America.

       • Tezz
         Posted 10/07/2011 at 8:57 pm | Permalink | Reply

         Actually what this is making me do is look at VPN options, out of interest do you have any suggestions, from google the top choices seem to be StrongVPN or VPNAuthority.

         • Graham
           Posted 10/07/2011 at 9:06 pm | Permalink | Reply

           I use StrongVPN – Works really well, doesn’t usually have to rebuffer. Cost 50 dollars for one year with US and UK IPs which seemed to be very cheap.

           If you can afford it, the Boxee box has a place to put in VPN details, so you don’t have to change your entire house to a US IP, just the Boxee Box. I’m sure you can do this with their Mac/PC client as well, but I haven’t checked.

           • Tezz
             Posted 10/07/2011 at 9:15 pm | Permalink | Reply

             Hadn’t seen the Boxee before, looks pretty cool.

             Actually I was going to set up a separate router behind my primary router and run the VPN from it, the PS3 already has software for Hulu and the like. Anyways, I’ll have a look at StrongVPN and see how it goes.

           • Tezz
             Posted 10/07/2011 at 9:41 pm | Permalink | Reply

             Ok StrongVPN account purchased (just the Lite one), pointing at San Francisco. Just waiting for it to be setup .. :-)

     • Simon
       Posted 11/07/2011 at 4:08 am | Permalink | Reply

       > Are you arguing against these options because they don’t seem to be making much impact over in the US?

       No I’m not. I think this supports a great business case that there is demand for a Netflix-like service in other regions. Perhaps we will get something like it here sooner rather than later. To whoever can crack it good luck to them.

       My point is that it’s time to debunk the myth that ‘piracy is happening because I don’t have access to .. Netflix/Hulu/Boxee/Whatever’. The evidence doesn’t support this. Sandvine has just shown that the introduction and then rapid rise in popularity of arguably the worlds most popular legal service to North America has done nothing to stem that region’s bittorrent traffic whatsoever. People are still pirating just as much as they ever were. Sandvine’s own analysis highlights this ‘seemingly contradictory’ result.

       Re we should at least have useable alternatives before an x-strikes ISP policy is introduced here (leaving aside Xbox-Live, Apple Itunes, Foxtel box-office, Qriocity, Bigpondmovies downloads) – my stance is baloney. Piracy is not related to a perceived lack of legit offerings. Piracy is about getting content for free and not being nabbed for it.

       You, or Graham, or anybody else can but your hand on your heart and say no way – I’d love to use a legit service if available at a reasonable price – that’s great and I’ll believe you. I’ll also happily accept there are a bunch of you out there. But sadly, the evidence shows the rest of the crowd don’t behave like you.

       • Tezz
         Posted 11/07/2011 at 9:03 am | Permalink | Reply

         You, or Graham, or anybody else can but your hand on your heart and say no way – I’d love to use a legit service if available at a reasonable price – that’s great and I’ll believe you. I’ll also happily accept there are a bunch of you out there. But sadly, the evidence shows the rest of the crowd don’t behave like you.

         Then those other people will be caught in the 6 strikes policy and either go legit or go out.

         I think we’ve reached an agree of sorts here :-)

   • toshP300
     Posted 10/07/2011 at 11:41 pm | Permalink | Reply

     @NK

     excellent Sandvine report:

     “Finally, this report shows that subscriber consumption in North America continues a rapid upwards trend, with median monthly usage increasing from 4 GB to 7GB in only six months, and mean consumption rising from 15 GB to 23 GB in that same period. The top subscribers continue to account for a disproportionate percentage of total subscriber consumption – almost half (49.7%) of upstream monthly usage originates with 1% of the subscriber base, and more than a quarter (25.13%) of downstream bytes are destined for 1% of subscribers.”

     there you go:

     i) the median consumption (7GB) is only a third of mean consumption

     ii) 1% of subscribers account for a quarter of download bytes

     iii) 1% of subscribers account for half of upstream bytes

     this is precisely why mandating equivalent infrastructure (universal fibre) access is stupidly expensive/wasteful and economically insane (as opposed to the smarter alternative of mandating minimum broadband access standards).

     not every broadband user is a hardcore, copyright-infringing, torrenting pirate:

     i) spending $50bln of taxpayers’ money to subsidise (or underwrite) rampant online piracy is crazy;

     ii) wireless is a major threat to the NBN because light users are the dominant demographic.

     • NightKhaos
       Posted 10/07/2011 at 11:46 pm | Permalink | Reply

       I haven’t even posted on this thread. Now you’re just signalling me out for the sake of it.

       • RS
         Posted 11/07/2011 at 8:41 am | Permalink | Reply

         @NK, an obvious sign that you have put him well and truly in his place.

         So as FUDsters do, he must now get his revenge at all costs…LOL!

         Precious aren’t they…!

       • toshP300
         Posted 11/07/2011 at 11:35 am | Permalink | Reply

         i previously quoted to you in a separate debate that “5% of subscribers account for 40% of global internet traffic” and you didn’t believe me.

         • Nightkhaos
           Posted 11/07/2011 at 11:54 am | Permalink | Reply

           Then provide that information there, in the proper context. Or at least somewhere relevant: This post has nothing to do with the NBN.

           Also your assertion that that excess traffic is due to illegitimate reasons has no evidence may be relevant to this post, if you could prove it, I still have to ask why you decided to make it in reply to me?

   • davidfrith
     Posted 11/07/2011 at 1:32 am | Permalink | Reply

     Simon… “Torture numbers, and they’ll confess to anything.”.. I’d read it that there has been a 12 % increase in ‘online’ media viewing in the 12 month period you state.. and legit methods managed to gain 83% of that market growth…
     sounds like a good thing to me
     the numbers are what you make them, but the music experience has shown it certainly pays to offer a legit service

     • Simon
       Posted 11/07/2011 at 3:34 am | Permalink | Reply

       That’s another angle, but I don’t think that really changes the analysis. Sandvines own statement : ‘the continued growth of Real-Time Entertainment enables a seemingly contradictory conclusion: P2P Filesharing is here to stay.’

   • Matthew
     Posted 11/07/2011 at 9:55 am | Permalink | Reply

     How about instead of looking at over all traffic we look at the part of the traffic that matters.
     In NA peek usage of fixed connections.
     Overall P2P(in BT and its brethren) and Real Time entertainment(mostly netflix and youtube) increased from 61.9%(2010 of all traffic to 68%(2011) the P2P componant of this traffic while increased overall which is reflected in the overall increase in “entertainment” traffic P2P made up 31.02% of this type of traffic in 2010 and only 27.65% in 2011.
     So it’s market share % is decreasing in a rising market.

3. Graham (Adelaide SA)
   Posted 11/07/2011 at 9:53 am | Permalink | Reply

   And how will anyone work out whether torrent data is copyright or not when everyone starts turning on torrent client encryption?

   • trog
     Posted 11/07/2011 at 10:51 am | Permalink | Reply

     My understanding of BitTorrent encryption is that it basically only useful to stop your ISP filtering/blocking/otherwise interfering with your traffic.

     If you’re connected to a tracker and you’re transferring data between peers for the same file, it will be reasonably obvious that you’re infringing copyright – the media industry stooges simply will connect to a copyright-infringing torrent, collect the IP addresses of any peers they’re sharing with, and can then infer that they’re infringing.

     If you want to use BitTorrent safely, you need to use a BitTorrent anonymizer service – something like BTGuard, which funnels all your traffic through its network – although bear in mind at the end of the day you have to trust that they are not logging your traffic flows in any way, because if they get compromised legally its possible they’ll be forced to turn over customer data.

     • Matthew
       Posted 11/07/2011 at 3:12 pm | Permalink | Reply

       Except by sharing copyrighted material they are authorising the infringement. Australian court have in the past ruled out evidence gathered by committing an offence. Some of the other method used are breach of interception laws these is one of the reason ISP don’t act of infringement notices because as has been ruled with the IINET case the evidence provided doesn’t stand up.

       • trog
         Posted 11/07/2011 at 3:15 pm | Permalink | Reply

         Well, they don’t need to share the work explicitly in order to piggyback on a torrent and identify infringers. In any case, the obvious legal hack to workaround that complaint is that they can actually get permission to redistribute from the copyright holder.

         p2p is, inherently, not a safe way to violate copyright (unless you’re using something like MUTE which is designed from the ground up to be truly anonymous).

   • deteego
     Posted 11/07/2011 at 8:33 pm | Permalink | Reply

     Movie companies catch people downloading bittorrents by downloading the same torrent (they often do this on public trackers). When you download a torrent, you can get the I.P. of everyone in the tracker, which is at this point where they send the notices to the ISP’s that own the subnets of those I.P.s.

     The bittorrent traffic is encrypted, but tracker info (especially public trackers) is not. if you are downloading a torrent, everyone downloading that torrent with you knows you are downloading that torrent (linked to your I.P.)

4. Josh
   Posted 11/07/2011 at 12:50 pm | Permalink | Reply

   The thing about three or six or any number of “strikes” policy that concerns me is what constitutes a “strike” and who enforces that.

   Regardless of if you are or are not breaching copyright, three or six allegations of copyright infringement. This is hideously open to abuse, there is no proof required at all, nothing going through any sort of validation.

   There seems to be the attitude around that “I’m not going to be effected as I don’t download things illegally.” The thing that is scary about this sort of thing is that you don’t have to actually do anything, you just have to have people allege that you did a few times and you are “punished.” I see strong parallels with this and “She’s a witch!”

   Personally, I am very strongly opposed to any sort of “punishment” being metered out without due legal course. As far as I can see this completely and utterly removes any recourse for any sort of defense before getting your “punishment” or holding anyone accountable at any point for proving that the alleged activities even took place. This would set a dangerous precedent if punishment for crimes is metered out by businesses because of allegations made by other businesses.

   I’d hope there is some sort of legislation I am unaware of that would make this sort of activity unlawful in Australia, if there is not I think it’s time someone started the wheels in motion to get one in place.