Attorney-General’s Dept seeks BitTorrent advice


The Federal Attorney-General’s Department has invited major Australian ISPs and content owners to meet with officials and discuss the current landscape with regard to online copyright infringement, as it seeks to advise the Government on the current landscape and the views held by different sides of the debate.

The Australian newspaper reported this morning that organisations including the Australian Content Industry Group, the Australian Federation Against Copyright Theft, another group called ‘Digital Entertainment Alliance Australia’ have been invited from the content side of the fence, while Telstra, Optus, the Internet Industry Association and the Communications Alliance will represent ISPs.

However, while the newspaper had reported the push had come from the office of Attorney-General Robert McLelland (pictured), a spokesperson for McLelland noted the meeting had been convened by the Secretary of the Attorney-General’s Department, Roger Wilkins, “to gauge the views of key stakeholders with a view to advising Government on the current state of play and stakeholder views”.

Departmental officials are regularly called upon to provide advice to the executive branch of government (ministers and Cabinet), to better inform policy decisions.

Although senior Labor figures such as Communications Minister Stephen Conroy have on occasion commented directly on the issue of online copyright infringement, so far it appears that the Federal Government has largely been awaiting the outcome of the high-profile court case between iiNet and AFACT over BitTorrent file sharing before taking a concrete position on the matter.

The case — which is shortly slated to head to the High Court in a second appeal by AFACT — has largely come down in iiNet’s favour in judgements over the past several years. It focuses on the use of the BitTorrent file-sharing protocol, which is currently the dominant file-sharing technology used for online copyright infringement — although it is also used extensively for legally sharing content.

However, based on some segments of the judgements, AFACT has begun approaching other ISPs outside of the iiNet trial, with a view to working with them to refine their copyright infringement policies to more strongly tackle the issue.

“The Attorney-General has always said that his preference is for industry to work together to develop a code to address this issue, but that the Government was open to considering other options should industry be unable to agree on a solution,” McLelland’s spokesperson said today. “Stakeholders have expressed differing positions on the need for, and scope of, any Government intervention on this issue.”

To be honest, it appears as if these meetings being held by the Attorney-General’s Department are not that significant. It does not appear that they constitute any form of negotiated arbitration between the two sides, nor do I expect any legislation or solid policy to be formed by the Government as a result. What they appear to be is exactly what the Attorney-General’s office said today — briefings which will aid the department in advising Attorney-General McLelland on the matter.

It would simply not make sense for the Government to take any action on this matter until the High Court case between iiNet and AFACT has been settled. The role of the executive branch of Government is to set policy. Well, policy on the issue is already pretty clear and has been so for some time — that online copyright infringement is illegal. What iiNet and AFACT are in court about is the extent to which an ISP is responsible for taking action when external organisations detect copyright breaches by the ISP’s users.

If, following the conclusion of the case, the Federal Government believes the courts have gotten it wrong, and a substantial inequality exists between the two warring sides, I would expect it to take more serious action at that point — perhaps some form of negotiated arbitration between ISPs and content-owners, or even legislative change.

But intervening in an industry debate while a High Court case is going on? That just doesn’t seem like something any government in its right mind would do.

Image credit: Office of the Attorney-General


  1. #iitrial has only happened (to the extent of the current litigation) because AU law doesn’t address crucial issues in the modern copyright space. Specifically, ISP safe harbour provisions inherited from the US without thorough definition; P2P business models; etc.

    We all agree that copyright infringement is still illegal, even online; that laws should be technology neutral; and that laws should balance the rights of individuals, service providers and content owners. But rather than consult and decide on the issue 5-10 years ago, the A-G department waited for these companies to moot the issue at their own multi-million dollar expense, and is now ramping up to pick up the pieces.

    • Isn’t that a fairly normal approach from Government, though — wait to see whether industry resolves its own issues, then step in if it can’t? Of course, if it wants to take a more proactive role in industry development to spur some sectors, that’s another case.

    • Illegal? I’m not a lawyer, but my understanding was that it’s a civil matter. Otherwise wouldn’t the police be knocking on everybody’s doors?

      Chasing people actually profiting from this sort of behaviour, on the other hand, I can understand.

    • We all agree that copyright infringement is still ‘illegal’? Not in any legal fraternity I have been near lately.

  2. “But intervening in an industry debate while a High Court case is going on? That just doesn’t seem like something any government in its right mind would do.” So, it’s not off the books in the current political climate, then? ;)

  3. Of course who is to represent the rights of the consumers why isn’t a group like the EFA invited?

  4. I would like to see the government involved in the industry discussions. I think this is headed for a “three strikes” policy similar to the one in France. If the third strike is going to result in disconnection then it needs to operate under some government/legal framework. It’s possibly ok for ISPs to pass on warnings on the copyright mob’s allegations (and that’s all they are) but disconnection requires formal proof. I think that proof should be assessed and acted on by a government department not the ISPs.

    • Proof should be assessed and acted on by a court. ACMA can’t tell the difference between a dentist and a pornographer…

  5. When it becomes mandatory for Australia Post to open and check my mail, it may also be reasonable for my ISP to open and check my downloads.
    Last week, I legally downloaded almost 3 GB of free open source software with bit torrent, using encryption for added security.
    I’d rather not have to use a VPN or tor, to avoid problems with my ISP.

  6. We are governed, not led. That is the status of our government – they have zero leadership. If we go the 3 strikes route, in time we will have a second class of citizen. Where do you stop? Already governments in many countries removed criminal records from people under spent conviction legislation because they were starting to disenfranchise a whole swag of people. If you ban a family like in NZ then you start fostering families who cannot easily apply for jobs etc. The government needs to get out of being the industries policeman. By all means, fine, jail and do-what-ever to those jerks who download and then sell – but stop chasing the individuals who download for personal use – what a waste of time. These people tend to go out with others in a social setting to watch the content at legitimate places anyhow – they mostly download so as to not be so naive with friends rather than do it for personal financial gain and therefore a sale is not lost anyhow

  7. If the Attorney General had any balls, they would force the Movie Industry to adopt Downloadable Movies like NextFlix, or even better, bring Netflix here in AU, with AU jobs.

    Stop pissing about with this BT stuff.

  8. Why does Hollywood get three chairs at the table? AFACT, DEAA and ACIG are all just funded US lobby groups.

    Are we ruled by Hollywood?

    Where’s EFA? Choice? Liberty and Privacy groups? Why is McLelland only interested in talking to big business? And why are the practices of “detection” outfits like Dtecnet never questioned?

    We’re all going to need TOR, peerblock and a VPN just to keep our own government ( at the behest of a bunch of US corporations) out of our private business.

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