news The ISP at the heart of a High Court case focusing on Internet piracy has indicated it is “supportive” of a Federal Government proposal which would “streamline” the process whereby anti-piracy organisations such as Movie Rights Group and AFACT could request information about ISPs’ customers who had allegedly downloaded copyrighted material online.

The proposal was published (although subsequently redacted) in a consultation paper issued by the Department of the Attorney-General last week. In it, the department acknowledged Federal Court rules currently contained a general discovery procedure which could enable a copyright holder to obtain the details of a potential infringer from an ISP.

This is the process which a new company, Movie Rights Group, has proposed in its current action to seek the details of some 9,000 Australians it alleges have illegally downloaded the film Kill the Irishman. Movie Rights Group is also planning to target those who have downloaded other films. After obtaining the users’ details, Movie Rights Group plans to send the individuals letters inviting them to settle the case ahead of legal action.

However, the Government’s paper last week stated, this process had been criticised as “cumbersome and expensive in the case of multiple online infringers”. “There may be advantages in considering whether it is desirable to adopt a more streamlined procedure for copyright owners to identify ISP subscribers who engage in online copyright infringement,” it added.

iiNet regulatory chief Steve Dalby said while the paper didn’t contain the full details on the proposal, the principles laid out “pretty much align with what iiNet has been saying for years”, as well as in its Federal Court defence against a number of film and TV studios represented by the Australian Federation Against Copyright Theft, and aspects of the initial Federal Court judgement in the case.

Such a proposal, Dalby said, would include a number of key ideas, such as the fact that any requirement on ISPs to disclose private details should involve judicial oversight by a court satisfied by the accuracy of the information used to identify individuals; the idea that the regulatory burden on ISPs should be kept to a minimum, and the idea that rights-holders should pay ISPs a processing fee and indemnify them during the process.

“In summary, we are supportive of the proposal put by the Attorney General. We will be discussing further amongst the broader ISP community, but I would suggest there will be more fine-tuning than opposition,” said Dalby.

The “streamlined” process as outlined by the Government last week also appears to mirror a proposal (Word doc) which a number of ISPs had put to the then-Rudd Labor Government on the issue in April 2008. At the time, ISPs including iiNet, Internode, Telstra, Optus, Westnet, Unwired, Verizon Business and also search giant Google had argued that a “streamlined” process that would take them out of the equation would be more appropriate than the system being proposed by the content industry at the time, which involved a “notice and disconnection” regime.

“Service providers propose a streamlined preliminary discovery process … to make it easier for rights-holders to identify and therefore take action against alleged infringers,” the ISPs wrote in their joint submission. They subsequently agreed that if rights-holders approached ISPs with the correct and agreed-upon “template” legal approach, the ISPs “would agree not to contest any order for discovery made against them”.

Further, the ISPs argued it may even be possible for the process to be streamlined further — “by the filing of pre-agreed consent orders … at the same time as the application is made” — avoiding the need for a hearing before a court.

However, not everyone is happy with such a system being proposed. Last week, digital rights lobby groups Electronic Frontiers Australia and the Pirate Party Australia severely criticised the Government’s proposal.

“File sharing is a legitimate form of cultural participation, and the move to criminalise and repress it by governments all over the world whilst sacrificing privacy and turning carriage service providers into de facto copyright cops is simply a ploy by the copyright monopoly to sacrifice our privacy in pursuit of financial gain,” said Pirate Party Australia president Rodney Serkowski. “What they are looking for is a streamlined system for the invasion of privacy.”

EFA board member Kimberley Heitman said there were “no consumer issues” being discussed through the consultation paper — “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?”, he asked.

“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!”

Image credit: Screenshot of new iiNet advertisements, believed to be covered under fair use

Related posts:

1. IIA requests “streamlined” piracy controls from Govt
2. Govt proposes “streamlined” piracy controls
3. iiNet backs Movie Rights Group’s legal process
4. EFA has mixed feelings on anti-piracy scheme
5. ISPs propose new anti-piracy warning scheme

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1. Guest
   Posted 17/10/2011 at 11:16 am | Permalink | Reply

   “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!”

   Is there anything to suggest that either of those two things have happened? And it’s the Attorney General’s Department, not the Dept of Communications. Where do EFA find these people? And shouldn’t EFA now be arguing against the ISPs (it’s their plan after all) not the rightsholders or the Govt?

   • PeterA
     Posted 18/10/2011 at 11:38 am | Permalink | Reply

     So they came out and said what it was they were negotiating for in the ACTA treaty then?

2. The Gh0sts
   Posted 17/10/2011 at 11:50 am | Permalink | Reply

   this wouldn’t be a problem if hollywood changed its business model!

   • Guest
     Posted 17/10/2011 at 11:53 am | Permalink | Reply

     maybe they’re waiting for a time when the online marketplace for content is not charactertised by widespread piracy and where they actually have a chance at competing against free?

     • PeterA
       Posted 18/10/2011 at 11:48 am | Permalink | Reply

       So… let me get this straight.

       They have content that is getting stolen. They want to stop it getting stolen, and instead sell it. They aren’t selling it… because it is getting stolen? So they are going to wait until everyone stops stealing stuff before they sell it.

       Oh that makes so much sense now.

       PS. computer games aren’t doing too shabbily, and they have had this problem much longer than the rest of the content industry.

     • Bruce
       Posted 18/10/2011 at 1:28 pm | Permalink | Reply

       No, the end game is total control of all new content through the ongoing extension of copyright and draconian penalties for even minor infringements. It is already very difficult to create something completely original. In future anyone attempting to create any content will need copyright protection from the studios for the seconds of possibly copyright infringing ideas that the content may contain – ie will need to sell their rights back to the studios at a nominal fee to be determined at the studios convenience much like current patent wars in IT. Unfortunately our politicians and public servants aren’t bright enough to see this or just don’t care, they are essentially signing away any future – non aligned – creative industries in this country.

3. Sdalby
   Posted 17/10/2011 at 12:11 pm | Permalink | Reply

   >>Image credit: Screenshot of new iiNet advertisements, believed to be covered under fair use

   For the avoidance of doubt – permission granted.
   :-)

   • Renai LeMay
     Posted 17/10/2011 at 12:23 pm | Permalink | Reply

     Heh cheers!

4. toshP300
   Posted 17/10/2011 at 2:46 pm | Permalink | Reply

   it’s plain obvious that all the ISPs care about is the adoption of a formal, Government-sanctioned process that satisfies three criteria:

   i) it immediately absolves the ISPs from any liability for any copyright infringing activity subsequently proven in court to have been facilitated over their network infrastructure (expansion of safe harbour);

   ii) direct judicial oversight over the divulgance of private subscriber details to the content litigators to protect them from any potential lawsuits from subscribers;

   iii) future pursuit by the copyright holders of pirates imposes the minimum cost on ISPs in terms of legal co-operation, court appearances, legal handling fees, etc.

   so, once this streamlined process is in place, if you think ISPs are going to bother expending any time or effort finding ways to block the handing over of your private information to professional litigators (blackmail artists), you’re dreaming.

   instead, these ISPs want to smooth the way for outfits like the MRG to directly target individuals by giving them a simple template to request the private details of subscribers.

   • Guest
     Posted 17/10/2011 at 3:00 pm | Permalink | Reply

     Spot on and well said. ISPs care about one thing and one thing only = $$$$

     • Anonymous
       Posted 17/10/2011 at 3:08 pm | Permalink | Reply

       They are also pushing for some sort of fee for each of these customer lookups … probably something in the order of $100 perhaps?

5. toshP300
   Posted 17/10/2011 at 3:28 pm | Permalink | Reply

   one thing that concerns me… you’re going to have the blackmailers’ lawyers sitting in the Federal Court judge’s chambers… making a “sell” about the quality of the technical evidence garnered on particular subscribers.. you have to wonder how qualified the judge is in assessing the quality and significance of the evidence from a technical perspective (not legal)… (maybe the “iiNet vs AFACT” case has established some new legal principles on this particular issue.)

   normally, in a court trial, you have both sides hiring outside technical experts to provide their expert opinion and argue over the quality of the evidence. in this case, it’s our private information that is at risk of being divulged here, but the only parties being represented in court are the ISPs and the blackmailers.

   and, under the streamlined procedures, the ISPs are basically washing their hands of the whole affair and want to be involved as little as possible — hence, the comments about “filing a pre-agreed consent order at the same time as the application is made to avoid costly court appearances”. basically, an automatic “no-contest”.

   surely, if the ISPs are waving the white flag from hereon end, the subscribers, whose private information is at risk of being divulged to the blackmailers, have a natural right to defend this breach of their privacy in court prior to an application being approved by the Federal Court judge.

   methinks the ISPs should be careful not to be so quick abandoning their customers to the wolves.

   • Anonymous Coward
     Posted 17/10/2011 at 4:38 pm | Permalink | Reply

     @toshP300
     “methinks the ISPs should be careful not to be so quick abandoning their customers to the wolves. ”

     The kind of thing that would send the, say, the #2 ISP to being the #20 in a few short weeks.

     • Guest
       Posted 17/10/2011 at 4:45 pm | Permalink | Reply

       not really – not when every ISP is doing the same thing – which is where this will end-up.

6. Guest
   Posted 17/10/2011 at 10:40 pm | Permalink | Reply

   im against anything whereby someone can obtain my details from a 3rd party for reasons of suing me, without getting explicit permission from a court. To do so will lead to fishing expeditions. lets email 10,000 random people and threaten them over some random infringement and see how many pay up. and it doesnt cost me a cent to do it? Lets rock! uh, no

   I can see santa claus owning a lot of internet accounts from now on. If you cant find the owner, you cant sue them.

7. Btone
   Posted 18/10/2011 at 1:46 am | Permalink | Reply

   You don’t need a weatherman to know the way Bobs wind blows…

8. Renai LeMay
   Posted 18/10/2011 at 12:38 pm | Permalink | Reply

   Hey everyone,

   I think quite a few of us have now seen some of the coverage about Movie Rights Group that is out there. I’m hoping right now, if you read through it completely, why you understand that I couldn’t publish it on Delimiter ;) I’m not a major publishing company … just a small one.

   Unfortunately I still can’t tolerate links to that coverage or discussion of those issues on Delimiter. The reasons should be pretty apparent. However, there are definitely places where these things can be discussed, and I would encourage you to find them.

   Please don’t hesitate to drop me a line at renai@delimiter.com.au if you want to discuss offline.

   Renai

   • Curious
     Posted 19/10/2011 at 11:12 am | Permalink | Reply

     I’m not sure that I understand you. You have made similarly vague statements a number of times.

     You are afraid of linking? Why? You can’t discuss things here? Easily fixed, disable comments.

     You have a peculiar policy — one I think you should explain — publicly.

     • Goku Missile Crisis
       Posted 19/10/2011 at 11:46 am | Permalink | Reply

       Would you prefer a Delimiter that covers its arse in the face of a pretty nasty legal & political climate, or one that actually exists?

       Give Renai a break. It’s not as if he’s pretending there’s nothing to talk about, just politely suggesting we do it elsewhere. Unless you can personally afford to retain the likes of Stuart Littlemore in his defence…

       • Renai LeMay
         Posted 19/10/2011 at 12:03 pm | Permalink | Reply

         That’s pretty much it … unfortunately there are some cases where I can’t host information that a larger publisher could. It will be different eventually when we’re a bit bigger ;)

9. Guest
   Posted 19/10/2011 at 9:54 am | Permalink | Reply

   https://www.eff.org/IGF-EFF-Fights-Against-Dangers-Intermediaries-Internet-Police

10. Goku Missile Crisis
    Posted 19/10/2011 at 11:40 am | Permalink | Reply

    If you don’t like this kind of thing, don’t give your money to Uncle Tom ISPs.