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  • Featured, News, Telecommunications - Written by on Monday, October 17, 2011 1:10 - 41 Comments

    Govt redacts ISP anti-piracy consultation text

    news The Federal Government has quietly deleted a controversial section of text published in a consultation paper last Friday that proposed a “streamlined” legal process to aid anti-piracy organisations such as Movie Rights Group and AFACT to target individuals allegedly downloading copyrighted material online.

    Last Friday, October 14, the Department of the Attorney-General published a consultation paper regarding digital copyright regulation. The original paper, available in full here (PDF), contained two discrete sections. The first dealt with a proposal to revise the scope of ‘safe harbour’ regulations to better protect organisations which host others’ content online.

    However, it was the second section of the paper which garnered more attention, due to its included proposal aimed at “streamlining” the process whereby content owners can force ISPs to divulge details of their customers in copyright infringement matters. This is the process currently being used by a new company, Movie Rights Group, to seek the details of some 9,000 Australians who have allegedly infringed its clients’ copyright online.

    “Widespread unauthorised downloading and use of file-sharing applications has made it increasingly difficult for copyright owners to successfully commercialise their property in the digital environment,” the paper stated. “The difficulty of identifying persons engaged in infringing activities has also made it very difficult for copyright owners to protect and enforce their rights.” The release of the paper was accompanied by a speech by Attorney-General Robert McClelland to an event held by the Australian Copyright Council.

    However, the entire page of text dealing with the proposed streamlined process has been deleted from a revised consultation paper posted on the Attorney-General’s website. Several minor additions have also been made to the text. The new copy of the consultation paper can be found online here (PDF). Comment will be sought from the Attorney-General’s Department this morning as to why the consultation paper was substantially modified without notice to the public.

    The publication of the paper had already attracted significant criticism from digital rights groups such as Electronic Frontiers Australia and the Australian branch of the Pirate Party. Following the redaction revealed tonight, the Pirate Party further criticised the Government over the matter.

    “This is an unacceptably opaque attack on our civil liberties,” said the Pirate Party Australia in a statement tonight, referring to the redaction, “and only further highlights the Government’s continual attempts to limit the public’s involvement in any governmental decision-making.” The party plans to submit a response addressing the issues raised in the original consultation paper.

    The Department of the Attorney-General is currently engaged in closed door talks between the ISP and content industries, with the aim of brokering some kind of industry solution to the issue of online copyright infringement. However, little information has been released regarding the talks so far, and the department has refused at least one Freedom of Information request regarding minutes of the talks — stating no such document exists.

    “Not only are we seeing a clandestine process that excludes civil society and the public at a critical juncture in the development of policy, we are now seeing a deliberate attempt to suppress contributions from them,” said Rodney Serkowski, President of Pirate Party Australia. “Perhaps this is because the outcomes of the ‘consultative process’ are predetermined, and the facade of ‘open government’ has to be maintained. Now that we have raised serious issues, like the streamlined invasion of privacy, the process of consultation has been heavily restricted.”

    “Of course, this could only be administrative incompetence, but the previous actions of the Attorney-General’s Department do not lend themselves to this explanation,” added Serkowski.

    On Friday, before the new redacted version of the consultation paper appeared, EFA board member Kimberley Heitman said the consultation paper was worth public comment, and his organisation would respond. “Obviously the expansion of the safe harbour definition will be advantageous for Internet businesses other than carriers, and a summary procedure for identifying end-users has been long desired by big media companies,” Heitman said.

    “The Government should step back, however, and understand that this consultation paper illustrates how flawed its consultation process to date has been. There are no consumer issues for discussion, only law reform for business interests. For example, why is there no attempt to deal with the causes of unauthorised downloading, which include restrictive trade practices and industry indifference to minority markets? Why is there no acknowledgement that in a broadband environment, IP addresses are shared?”

    “There is much more to public consultation than telling the public that the Government has signed a secretive trade agreement or has done a deal with private industry. Department of Communications: Learn how to communicate!”

    Pirate Party Australia acting secretary Brandan Molloy said his “favourite part” of the original version of the consultation paper was its citation of a report recently commissioned by the Australian Federation Against Copyright Theft, which represents film and TV studios in anti-piracy efforts. The report, dubbed the Economic Consequences of Movie Piracy (Australia) and available online (PDF) came under heavy attack earlier this year from groups such as the EFA, which cited at the time what it saw as its flawed methodology for tracking lost sales.

    “It is disappointing that our Government continues to base their opinions on such flawed data, and will now simply continue to do so behind closed doors,” said Molloy.

    update: The following statement has been received from the Attorney-General’s Department:

    The Safe Harbour consultation paper is currently on the AGD website. Comments are due by 22 November 2011.

    The Department is currently working on a number of copyright policy issues relevant to the digital environment. A draft document which incorporated other issues not included in the Safe Harbour review was mistakenly posted on the Departmental website. It was removed as soon as the error came to light. A clarification will be posted on the website.

    We believe that the ongoing departmental convened discussions between ISPs and content owners is currently the most appropriate forum to address these issues.

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    1. Dean Harding
      Posted 17/10/2011 at 6:48 am | Permalink |

      The plot thickens…

    2. Guest
      Posted 17/10/2011 at 8:10 am | Permalink |

      If they redacted the study, then they know there’s huge issues with it and it wouldn’t withstand public/media scrutiny.

      AGs are clearly trying to hold AFACT at bay with an “industry based solution,” thereby avoiding legislation. Good news is it won’t produce a legally binding outcome, bad news is, the government are f*cking wimps and won’t tell AFACT to shove their false stats and lobbying millions up their arse.

      Torrentfreak have produced an excellent list of VPNs that can be used to keep Hollywood out of your communications.


      But we shouldn’t need a VPN at all. We should have a government more interested in citizen rights and access to a modern utility over the profits of a failed foreign business model.

      • Harquebus
        Posted 17/10/2011 at 9:47 am | Permalink |

        Dream on.

      • Guest
        Posted 17/10/2011 at 10:47 am | Permalink |

        Yep there are also some usenet guys that don’t log what you download as well. I use a secure VPN. I was in at the development of my VPN at the ground level and I know the manager so I’m confident no logs kept :)
        In any case if I didn’t really need a VPN I’d still use one it’s just to be sure and who really trusts what the gov says? hehehe

    3. Suggestion
      Posted 17/10/2011 at 8:18 am | Permalink |

      Not sure who lodged the FOI request for the ‘minutes’ of the meeting. It might be more productive to submit a broader FOI request – eg. request “all documents relating to copyright infringement policy, including any documents concerning consultations with and between industry representatives of ISPs and industry representatives of content owners”.

      • Peter Trajkovski
        Posted 17/10/2011 at 8:57 am | Permalink |

        FOI doesnt work like that. It needs to be very specific what is being requested

      • Posted 17/10/2011 at 9:36 am | Permalink |

        This would cost a lot of money.

    4. Harquebus
      Posted 17/10/2011 at 9:44 am | Permalink |

      This should be no surprise to anyone. The Labor Party has a proven track record when, it comes to eroding our liberties. They will pursue this and the internet filter. They have nothing to lose, not even their reputations.

    5. Guest
      Posted 17/10/2011 at 10:15 am | Permalink |

      you’ll actually find that the streamlined process is something Australias *ISPs* want; not the rights-holders.

      Mark Newton (former lobbyist for Internode on all things copyright, filter) etc explains here:

      • Posted 17/10/2011 at 10:26 am | Permalink |

        Article coming on this shortly :)

        • Guest
          Posted 17/10/2011 at 10:35 am | Permalink |

          i’m guessing the reason for the update is that the streamlined process already exists through order 15A of the Fed Court rules – and someone told them this. EFA and Pirate Party should probably do their homework and consult with their key stakeholder (ie the ISP industry) before making public comments.

          • Posted 17/10/2011 at 10:54 am | Permalink |

            Somehow I don’t think the ISP industry is a key stakeholder for the EFA and Pirate Party ;)

            • Guest
              Posted 17/10/2011 at 11:04 am | Permalink |

              oh c’mon, you’re kidding right? Don’t be so naive. EFA has staff from top tier ISPs volunteering their time and efforts (including by representing them in proceedings). Have a look at the resumes of EFA’s board, and why don’t you ask them for a list of their donations, including if any of those came from person who work with ISPs.

              • Dean Harding
                Posted 17/10/2011 at 12:02 pm | Permalink |

                I’ve just looked at EFA’s board and I see no representation from ISPs. I see some software people, some lawyers, a university professor, but no “top tier” ISP staff.

                Given that donations are not public, it’s hard to say whether ISPs make significant contributions. I personally doubt it, but even if they did, I don’t see how donations would make them a “key stakeholder”.

              • Guest
                Posted 17/10/2011 at 12:22 pm | Permalink |

                Kimberley Heitman:

                •Founding Director and Lawyer at iiNet
                •Board Member at WA Internet Association

                Dale Clapperton (legal counsel at PIPE Networks and now Transact) represented EFA v ACMA during legal proceedings:


              • Dean Harding
                Posted 17/10/2011 at 1:31 pm | Permalink |

                Kimberley Heitman:

                •Founding Director and Lawyer at iiNet

                In the past, not currently employed by any ISP.

                Dale Clapperton (legal counsel at PIPE Networks and now Transact) represented EFA v ACMA during legal proceedings

                Past board member who is a lawyer for TransACT.

                I think your “links” are very tenuous at best.

              • Guest
                Posted 17/10/2011 at 1:48 pm | Permalink |

                oh yeay, it’s all just a coincidence

              • Dean Harding
                Posted 17/10/2011 at 2:14 pm | Permalink |

                Well it seems obvious that there’d be some links between an organization that deals entirely with issues relating to the internet and ISPs. A lawyer who specializes in the internet, IP and ISPs is a perfect candidate for board membership of the EFA. But all your “links” between ISPs and the EFA were from several years ago, so your assertion that ISPs are a “key stakeholder” of the EFA just isn’t borne out by reality.

              • PeterA
                Posted 18/10/2011 at 8:25 am | Permalink |

                By your logic Guest, AFACT have close ties to NBN Co, since Sabiene Heindl works there now.

                Oooh and since NBN co is an ISP, that means AFACT is closely tied with the ISP industry!! Now that means the EFA is closely linked with AFACT!!

                ITS A CONSPIRACY the EFA the ISPs and AFACT are in it together!

              • Guest
                Posted 18/10/2011 at 10:14 am | Permalink |

                well, I guess we’ll never know – EFA has always been so secretive about its back door dealings, memberships and donations…

                • Posted 18/10/2011 at 11:53 am | Permalink |

                  I wouldn’t say the EFA has been secretive about its dealings — in fact I have always found the company extremely open.

                  Furthermore, Guest (and bear in mind that I know which repeat postings are yours, courtesy of your IP address and email), I am of the view that you are currently trolling. I would recommend that you cease this activity.

          • Glenn McGrath
            Posted 17/10/2011 at 10:56 am | Permalink |

            If that is true it further demostrates that lack of transparency and consultation with stackholders.

          • Guest
            Posted 17/10/2011 at 2:38 pm | Permalink |

            I guess, but it just so happens that EFA’s policies mimic the ISP industry’s policies for the most part. Whether you happen to think that’s due to coincidence, or whether you have enough life experience to import a degree of healthy skepticism in explaining the similarities – is up to each individual…..spose we’ll never know until EFA comes clean.

    6. Posted 17/10/2011 at 11:58 am | Permalink |

      FYI I have updated the article with a statement from the Attorney-General’s Department.

    7. Harquebus
      Posted 17/10/2011 at 12:14 pm | Permalink |

      “convened discussions between ISPs and content owners is currently the most appropriate forum” when, you are after other peoples money. Where does the artist fit in all this. Uno, the one they call BS.


      • Guest
        Posted 17/10/2011 at 12:30 pm | Permalink |

        well, artists are technically part of the broad umbrella of parties that constitue “content owners”

    8. Posted 17/10/2011 at 1:24 pm | Permalink |

      “industry solution to the issue of online copyright infringement”
      How about an industry solution to “giving users legal avenues to accessing copyright material”

    9. Sticky
      Posted 17/10/2011 at 1:32 pm | Permalink |

      This article casts some doubt over the ability of rights holders to pursue infringers:

      • Dean Harding
        Posted 17/10/2011 at 1:36 pm | Permalink |

        This is why you need judicial oversight, and nothing in any of the consultations to date even comes close to addressing this problem.

        • Guest
          Posted 17/10/2011 at 1:50 pm | Permalink |

          What do you mean? the streamlined discovery process being pushed here by the ISP industry is a Federal Court process whereby the Federcal Court directs ISPs to release customer details upon the provision of certain evidence – that way ISPs minimise their legal liability.

          How much more judicial oversight do you want?

          • Dean Harding
            Posted 17/10/2011 at 2:15 pm | Permalink |

            Um, yeah, exactly my point.

            • Guest
              Posted 17/10/2011 at 2:32 pm | Permalink |

              I don’t understand. So what you’re saying is, you support the ISP indsutry’s proposal for a streamlined procedure. Is that right?

              • Dean Harding
                Posted 17/10/2011 at 2:42 pm | Permalink |

                As long as it involves judicial oversight, yes. But given that this is basically how it works now (i.e. via an Order 15A) I’m concerned what the “streamlining” actually involves.

          • PeterA
            Posted 18/10/2011 at 8:20 am | Permalink |

            That process already exists. Thats a 15A (or whatever the hell IANAL).

            A “Streamlined” process, better not just be a rubber stamp. “Here judge is a list of 10,000 IP Addresses we think copied stuff without permission, please sign on this line so we can go sue them”.

            Rather than, some like evidence or something.

    10. Dean Harding
      Posted 17/10/2011 at 1:49 pm | Permalink |

      We believe that the ongoing departmental convened discussions between ISPs and content owners is currently the most appropriate forum to address these issues.

      In other words, we’d prefer to keep the thorny issue behind closed doors and not in public.

      • Mgb68mkii
        Posted 17/10/2011 at 2:14 pm | Permalink |

        Isn’t this an ISP industry vs content owners’ issue – the only time the “public” come into it is when they are suspected of infringing copyright.

        I have never seen criminals consulted when laws are being strengthened to catch and convict them.

        • Dean Harding
          Posted 17/10/2011 at 2:27 pm | Permalink |

          “Suspected” being the operative word. Unless you want to take the “guilty-until-proven-innocent” track.

          I have never seen criminals consulted when laws are being strengthened to catch and convict them.

          Nobody is suggesting criminals should have a say.

        • Anonymous
          Posted 17/10/2011 at 2:52 pm | Permalink |

          Also this issue isn’t a criminal matter, it’s civil….

        • PeterA
          Posted 18/10/2011 at 8:18 am | Permalink |

          The “public” come into it when 4% of them are (completely erroneously) identified as infringers and extorted / disconnected from the internet by accident. (And that is if you believe their detection is only 4% wrong).

      • Anonymous
        Posted 17/10/2011 at 9:35 pm | Permalink |


    11. Posted 17/10/2011 at 7:30 pm | Permalink |


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