Anti-piracy scheme throws users to the legal wolves


opinion The anti-piracy scheme proposed by the ISP industry this afternoon as a response to online copyright infringement through platforms like BitTorrent opens the door for content owners to start taking hundreds of thousands of Australians to court for minor offences such as downloading a handful of films or TV episodes.

In general, the scheme — detailed in full in this discussion paper (PDF) — has much to like about it. In putting the proposal together, the ISP industry has taken great care to avoid many of the really draconian punishments which have been implemented internationally and proposed in Australia over the past few years.

Unlike in New Zealand and France, the scheme does not proposed that Internet users’ broadband connections be shut off after repeated piracy offences. This idea is simply unpalatable in a society which depends daily on access to the Internet for access to basic services such as banking and dealing with all levels of government and business — to say nothing of Australians’ personal lives. It is also, of course, incompatible with the current Labor Government’s vision of universal fast broadband access.

In addition, the scheme avoids the noxious idea that ISPs would simply hand over the details of their customers upon receiving copyright industry demands. That idea represents a clear invasion of privacy and an abrogation of the ISPs’ responsibilities to their customers — not to mention a lack of due legal process.

Furthermore, there are a number of controls placed upon the process as a whole. Copyright owners must be accredited to join it, with the pre-approval process featuring an independent audit of their copyright infringement detection technology. On the Internet user end, Australians affected by the scheme will be given time to query warning notices received, dispute them, or seek further legal notice to protect their own rights.

I like the focus on education; although, it could be argued, education is a two-way process, and the content industry should perhaps be educated simultaneously on how to efficiently and painless make their content available online in the first place. It’s something users have been attempting to do for years.

And I like the fact that a formal legal process is involved — where, should copyright owners want to pursue action against individual users, they will be forced to do so through the courts, which is the appropriate venue for corporations who feel they have been aggrieved by consumers. The legal concept of the need for “evidence” — shocking, I know, in these fast-moving times — will be applied to their claims that certain Internet users have infringed copyright online.

The damage as a whole will be limited — with ISPs committing to each only process 100 maximum infringement notices each month during the 18 month trial period — and the ‘reset’ mechanism, by which users’ register of copyright infringement notices will be set back to zero if no notices are received during a 12 month period — is another worthy control factor.

However, there is one disturbing fact inherent to the scheme proposed today which I personally believe requires a deal of serious consideration.

The scheme as proposed contains a great deal of soft incentive for users to stop pirating content online. Gentle, repeated warnings, educational notices, an overall awareness that Big Brother is ‘watching’; the ISPs’ anti-piracy scheme contains all of these components, and I do expect them to have some impact on the levels of Internet piracy in Australia, if the scheme is enacted as proposed.

However, the scheme also overtly proposes a new and extremely punitive approach to dealing with repeat offenders which I find disturbing.

The ultimate punishment laid out by the ISPs doesn’t seem so bad: You won’t have your Internet connection cut off, and your actions won’t be reported directly to the authorities. Instead, all the ISPs are promising is that they will cooperate with legal demands from the content industry for specific users’ information.

This might not sound all that bad: Until you consider what the film and TV studios can do with that information.

In the US, the ability to source alleged Internet pirates’ details through mass subpoenas has resulted in the content industry sending hundreds of thousands of residents letters demanding that they settle threatened lawsuits for several thousand dollars, or else face fines imposed by the courts for amounts, in some cases of up to $150,000.

Upon receiving such a letter, Internet users face a number of undesirable options. If they simply front up and pay what the film, TV and music industries demand, they’re out of pocket for amounts averaging $3,000 — simply for downloading a piece of content which might have cost $30 to buy as a brand new DVD.

If they resist this legal approach, things quickly get worse. It’s a common tactic for the content owners to immediately up the amount that they’re demanding — for example, from an initial $4,000, to $7,000 or $8,000, in a number of reported Recording Industry Association of America cases.

And they can also face a higher social cost. Wired points out in a comprehensive article on the subject that many of the claimed pirated works are sensationalist in nature — such as the film ‘Nude Nuns with Big Guns’. Would many Australians want to be dragged into court for illegally downloading a slightly unusual piece of pornography? No. Especially if it might cause problems with their relationship or reputation. There is an inherent incentive to settle — despite the fact that the settling cost far outweighs the actual cost of the crime — again, something like $30 per offence.

If you do decide to fight the content industry’s legal threats, things can get pretty insane pretty quickly. In several cases decided in the US, juries have awarded amounts as high as $80,000 per song shared on the Internet. That’s right — $1.92 million for sharing an album with 24 tracks online. $1.92 million in fines. For an album which would probably cost no more than $20 to buy. Does that seem reasonable? Not really.

I’m sure that courts in Australia wouldn’t make such extreme judgements — the US legal system is known to be pretty insane. But you do have to wonder what our local legal system would consider reasonable. Would it levy fines of a few thousand dollars, perhaps up to a few tens of thousands of dollars, for online copyright infringement? What about community service and a public apology? Or could the court rule that infringers should have their Internet cut off for a while? I’m not a lawyer, but it all seems entirely likely.

This is the future which Australia’s major ISPs — with the notable exceptions of cut-rate ISPs TPG, Dodo and Exetel — have just compulsorily volunteered their customers for. In putting forward this scheme, the ISPs have basically proposed that they take absolutely no role in defending their customers from an entire industry which has a comprehensive and well-documented history of hugely unjustified lawsuits against customers who have only committed minor offences.

And before you comment that it won’t happen, remember that it already is. October, it was revealed that a new company — named Movie Rights Group — had approached every major Australian ISP seeking information on users who had allegedly infringed copyright online, initially seeking the details of some 9,000 Australians who it claimed had downloaded the film Kill the Irishman. There were plans to broaden the company’s efforts to other films — and MRG was planning to use the same threatening legal letter approach seen in the US — although the organisation’s future is now in question.

The most ironic thing about this issue is that it should be obvious by now that legitimate commercial models for Internet content exist. In 2011, the music industry is suing less people as it’s making an absolute mint through platforms such as Apple’s iTunes. Digital book publication is booming through Amazon’s Kindle store. And in the US, the incredible success of movie and TV on demand platform Netflix has demonstrated starkly how much Internet users will spend — a lot — if they are able to pay for whatever online content they want, when they want to.

In the face of such an evolving and rapidly growing economy for digital content, the actions by Australia’s ISPs in proposing an anti-piracy model that puts their loyal customers in the hands of a pack of voracious legal wolves constitutes nothing less than impatience and corporate cowardice. If the ISPs were prepared to hold on for a few years, no doubt the evolving digital economy would largely resolve the piracy problem once and for all.

The fact that they are not willing to do so indicates a stunning lack of loyalty to the customers who have earnt them billions of dollars in revenue over the past several decades.


  1. “Instead, all the ISPs are promising is that they will cooperate with legal demands from the content industry for specific users’ information.”

    All ISPs are saying is they will comply with a subpoena. Ie. they will comply with the law. Would you prefer otherwise?

    Basically they’re not offering anything except to send a few notices with, as far as I can tell, no actual sanctions attached – they’re not even offering to tell rightsholders which account holders have been warned more than once so they can target the more egregious offenders. They also want to be compensated in full for the costs of all notices sent and it looks like they want to make money from the scheme by “independently auditing” and no doubt charging rightsholders for the privelege of participating in their silly little letter sending scheme.

    It’s the weakest of all schemes offered globally thus far and it’s not going to go anywhere.

    • I would prefer that the companies Australians pay to provide me with telecommunications services do not communicate their details with companies attempting to sue them.

      • sure ok – but you know, it’s the law, you get a subpoena issued by the court, you need to comply otherwise you’re in contempt… me, the rule of law is ultimately a good thing.

        The key thing is that all ISPs are promising to do as part of their “scheme” is comply with a subpoena – which is an existing legal obligation and which most of them (well the big ISPs anyway) do every single day. So they’re actually not offering anything new at all, except for sending out a silly warning notice that won’t do anything.

        • As mentioned, the bit that you find concerning- the subpoena- is an existing piece of law. This policy is simply clarifying the notification system when they allege infringment.

          It should also be noted that the high awards in US court cases have been for UPLOADING, not downloading.

          • “As mentioned, the bit that you find concerning- the subpoena- is an existing piece of law. This policy is simply clarifying the notification system when they allege infringment.”

            Hey Bryn and Billy,

            I think something which has been missing from this debate so far is the idea that subpoenas are an existing piece of law. Sure, they are — however, I have not personally seen them used in Australia to retrieve details of alleged online copyright infringers yet.

            I have been following the Internet and telecommunications debate in Australia for some time, and it has been my impression that so far subpoenas have mainly been used by law enforcement to retrieve details of someone committing a crime — it is my impression that their use for private sector suits has been much more limited — in fact, I haven’t seen any examples of this so far.

            In this sense, the ISPs are not merely issuing warning notices to customers who would have been subpoenad anyway. They are promoting a relatively new use of subpoenas in this way. This was certainly the impression that I got when I spoke to Movie Rights Group a month or so back. They didn’t give me the impression at all that this was an established thing.

          • You’re right – they haven’t been used for low scale non-commercial copyright infringement (a civil matter) because frankly, they’re too expensive and time consuming and even if successful would only result in pitiful damages for rights owners. That’s why ISPs are so happy to say they’ll comply with them (because they know they’ll never get them) and rights owners will never agree to a scheme put forward by ISPs unless it has a sting of some kind (suspension, fine, termination, limited functionaility etc)

        • No, the “law” in this country is ultimately corrupt and basically fraudulent. The law is used by Governement as a revenue raising scheme to target the public cash cows and this will just be yet another Tax they will be able to impose on legitimate users to steal our property.

      • They are not going to communicate those details without a court order. So it’s the exact same situation we’re in now, except the ISPs are willing to pass on warnings if they’re reported by Rights Holders – under a pretty restrictive set of conditions, including the Rights Holders being willing to foot some of the bill for the setup required to do this.

        Overall, this reads like a good proposal to me, if only because it shows they’re willing to Do Something to give the Rights Holders some cookies to stop their incessant whining. It won’t actually change the current state of affairs, other than it might give some users (up to 100/month per ISP) a warning that they are being watched.

        I agree it would be great if the ISPs could just ignore them completely, I think what they are doing here is a reasonable compromise between Doing Something to help placate the Rights Holders, and preserving the rights and privacy of the customers.

        • “the exact same situation we’re in now”

          Actually I don’t think it is exactly the same situation we’re in now — I think this is a clear evolution of the legal process regarding subpoenas … they have been used extensively this way in the US — to retrieve user details from ISPs — but I don’t think they’ve really been used this way in Australia. Happy to be proven wrong.

      • As everyone else has said, though I have only had a quick read through of the scheme, it is still subject to due process in that a court has to sign off on an order (a subpoena for instance) that has to be complied with, though the account holder still has the ability to oppose the order once they find out about it, also the ISP can oppose the order too if they feel it is de minimus, vindictive, etc. Due Process still needs to be done.

        As for the Copyright holders threatening exorbitant sums of money like in the USA that will not occur unless our government changes the Copyright act to allow HUGE statutory damages. Though yes it doesn’t mean a legal nastygram threatening a huge sum of money COULD be given, though again harm has to be shown to occur. Though I suspect Aussies will not take that sort of crap as seen by the response to Movie Rights Group. Also we really do not have the moralistic problems here like in the USA for the fear of exposure to Porn (Nuns with big guns was stupid, but not porn) and our Privacy laws counter any attempt for an organisation to even try to use that type of FUD. Not saying it might not happen but the consequences here are far more extreme for the organisation than in the USA/EU

        I think the ISP’s have put together a very reasonable and clever piece of CYA (Cover Your Arse) though I too think the Copyright Holders will balk at this.

        • I don’t think the rights holders will sign up to support this scheme. In fact, I view its publication as more or less a public negotiation process with the rights holders. This is the first shot fired in a long debate; we will likely see something eventually settled on which gives the rights holders more power than in proposed in this document.

          I think they will particularly object to the limits on the number of notices issued per month per ISP etc.

  2. This is the result of the ISPs making the best of a bad situation. Their solution is reasonable, if you assume that the legal system will ensure a reasonable result, which is sadly not the case. In short, it’s probably the best they can do, given the circumstances.

    The crux of the problem is that the law is outdated and obsolete. No one wants to let this reach the courts because the damages will be utterly ridiculous, unless you’re willing to spend a small fortune appealing it up to the High Court.

    Fortunately there are no statutory damages provisions in the Australian Copyright Act, AFAICT, which are the main reason for the ridiculous damages in the US cases (the minimum award there is in the thousands, and is being appealed in Tenenbaum as being unconstitutional). Instead, Copyright Act 1968 (Cth) s115 (4) expressly states that damages may be awarded in addition to compensation for any actual damage (which is rarely proven in such cases, due to the difficulty and cost of doing so) shown where there is a need to deter similar infringements, or the infringement is particularly flagrant. I suspect that this will be the key provision in determining the damages, though I have no idea what they will end up being, given the amounts by which they vary across the globe.

    (I am not a lawyer, this is not legal advice.)

    • Interesting point. I would like to hear more from any copyright lawyers around about what the potential liability would be in a court case covering this kind of thing, under Australian law.

  3. >>This is the future which Australia’s major ISPs … have just compulsorily volunteered their customers for. In putting forward this scheme, the ISPs have basically proposed that they take absolutely no role in defending their customers from an entire industry which has a comprehensive and well-documented history of hugely unjustified lawsuits against customers who have only committed minor offences.

    You totally miss the point. Nobody is getting “thrown to the wolves”. This is essentially an early warning system for infringers. It is a method whereby people can be warned that they are being observed.

    If we leave out all the unauthorised use of wifi etc and just focus on the people (that we all know), that are routinely infringing copyright – this is a way for them to avoid getting prosecuted. Just the opposite of your overblown headline.

    This is ISPs caring for and educating their customers. Telling them they’ve been observed, telling them they shouldn’t infringe, telling them to stop now, before they get prosecuted.

    If they choose to give those warning the finger, and continue to infringe, they are volunteering for the wolves, in spite of their ISP’s best efforts.

    • Well said Steve, another load of tripe article by Renai …. He is getting good at twisting the actual facts into baseless stories :)

      • Agree, Renai has gone tabloid and lost credibility. I wonder if his opinion is actually because he’s an active copyright infringer? If he is, I wonder how he’d feel about people violating his copyright, by plagiarising articles from this website? The articles wouldn’t be “stolen” because he’d still have a copy – or so the logic of copyright infringers goes.

        • William, assuming you surfed the net for an hour before your comment, you probably accessed hundreds of separately copyrightable works. Are you sure YOU have all the correct licenses to access that intellectual property, you know ignorance isnt an excuse, and your legally required to get permission before you access it.

          People who live in glass houses shouldn’t throw stones, and as far as copyright law goes, the Internet is one giant glasshouse.

        • “gone” tabloid?

          My friend I have always been a tabloid journalist at heart ;)

          As for Delimiter’s own copyright … if someone is blatantly ripping off my stuff then I will contact them and ask them to cease and desist, but I normally don’t — because the strength of Delimiter is not in the actual articles that we write, but in the community that exists around the site. People can rip off articles, but they can’t rip off community ;)

          The other thing is that all of Delimiter’s articles are already free. So there is much less incentive for others to read our articles if they’re stolen and put on other sites. I’m not selling articles — I’m selling attention (to advertising space etc. It’s the same model which mainstream television uses, so I would expect the studios to understand it ;)

          Also, if at any point you think I’m becoming a really serious journalist, will you let me know? I try not to take myself too seriously!

    • hey Steve,

      I’ll be happy to cede your point — if you can clarify to what extent you believe the ‘subpoena users’ details’ approach is a normal and accepted one for content holders and ISPs in Australia. Based on my conversation with Movie Rights Group, and my knowledge of the industry, it seems to me so far that the subpoenas that ISPs currently receive are mostly issued by law enforcement authorities targeting the activities of higher order criminals — not commercial entities seeking to protect copyright.

      I have had a great deal of feedback that this subpoena process, which is ultimately the end game punishment proposed by the ISPs as part of this scheme, is not yet a normal legal process in the copyright infringement field. And the recent discussion paper published by the Federal Attorney-General’s Department, which proposed to streamline the subpoena process, would seem to back that view.

      Could you clarify that issue? For example, could you answer:

      -how many subpoenas per year iiNet currently receives
      -who they are typically issued by
      -what sorts of data they are seeking
      -what percentage relate to copyright infringement

      This may seem like a lot to ask, but if this is going to be the end game for Internet users under the scheme proposed today, I think we need to know more about the process.

      If the process turns out to be well-established and legitimate, I will find the scheme which the ISPs proposed today more palatable.



    • Steve,

      This is hilarious. You’ve cherry picked info from the FFC, used stats from Canada which the politicians thought did not meet scrutiny. Gold.

      If you’re going to treat this as a reasonable position paper, choosing minority sections from the FFC verdict are not going to hold sway in government (indemnification and costs) whilst paying no attention that all 3 judges in the FFC though suspension and disconnection were reasonable…

      As for Canada, you’re relying on stats which when presented before government – they were not impressed by the lack of data. It is also interesting to note that the ISPs were receiving in excess of 200k per year. Not 100 per month. Additionally, they do not charge the rights owner for sending notices. Once again, some dangerous cherry picking you’re engaging in.

      How can the CA possibly expect to show any improvement in infringement rates when during the case iiTrial you were receiving hundreds if not thousands of infringements per week? The rights owners are always going to be able to hand you 100 and thus the infringement rates could never fall. You could never be on the positive side of an argument that things were improving.

      Surely the government and presumably the rights holders, will take this as a non serious attempt at a finding a middle ground.

      • >>How can the CA possibly expect to show any improvement in infringement rates when during the case iiTrial you were receiving hundreds if not thousands of infringements per week? The rights owners are always going to be able to hand you 100 and thus the infringement rates could never fall. You could never be on the positive side of an argument that things were improving.

        I see you don’t follow the logic, Roger.

        Data gathered during the rial will show who received notices (anonimised, of course), how many and whether or not they continued or stopped. Cause and effect. At the account level, not the global level.

        So, Yes – We could demonstrate an improvement. That’s the whole point of a trial, to test the RHs claims that sending notices is effective in reducing infringements.

        This isn’t about : “how many people can RHs prosecute?”, it’s about : “How many people stopped after they got a notice?”

        • Steve,

          It’s not as much as me not ‘following the logic’ as thinking that you’re logic is flawed.

          If a Rights Owner was able to send notices on say 2000 per week. and you’re now limiting it to 1200 / year – the chances of getting the same account is extremely limited.

          The argument one received a notice a second/third time when this is reviewed would be surely overpowered that by setting such an arbitrarily low number to receive, that the probability of ever getting someone a second time is nearly non existent.

        • Data gathered during the rial will show who received notices (anonimised, of course), how many and whether or not they continued or stopped. Cause and effect. At the account level, not the global level.

          I think Roger raises a good point.

          If the RHs has data supporting more than 100 notices in the month they have to decide which 100 of that corpus they forward to the ISP for processing. If they have 1000 alleged infringements then there is a only 1 in 10 chance they would forward the IP address that had a prior notice.

          My question is, the 1-2000 notices the RHs can generate a month… are there duplications? How serious is the 100 notices a month limitation?

  4. Cheap sensationalistic and inaccurate headline Renai !

    This discussion paper proposes protection for the consumer, education for those that may be unaware of a transgression, judicial oversight, an appeals process by an independent authority, verification of the means used by rights holders and the mechanism to check those means by way of an audit which makes a mockery of this articles headline.

    • heh it’s true, I do tend to write sensationalist headlines; however they are also what I personally believe.

      And as I’ve written above, the key thing which is being missed here is that the ISPs are claiming that the subpoena process for commercial companies retrieving data of allegedly infringing users is far from established; it is currently being debated in legal and government circles, and I’m sure different judges would have different interpretations of it.

      I have heard some involved with the courts say that they believed some judges would kick mass subpoenas out as a waste of court time.

      • And I’ve heard Tony Abbot is a fiscal genius with a deep and intimate understanding of technology.

        Until legislation is drafted and open to scrutiny “I heard…” is nothing more than rumor and gossip and at best a reporter attempting to influence their readers.

        With headlines like this one could be led to believe the author is practicing for a position with the Australian. :P

      • >>I have heard some involved with the courts say that they believed some judges would kick mass subpoenas out as a waste of court time.

        I think you leap fearlessly to the wrong conclusion in support of your own story-telling. Firstly, RHs have never disputed their ability to request court orders to obtain customer information. They simply complain that it is too expensive a process.

        Secondly, the process we have proposed would leave only those repeat infringers that persist after warnings have been issued. The RHs repeatedly tell us that their research tells them that around 70% of people that receive notices stop infringing. That’s their number not ISPs.

        This means that about 30% of those that received notices may therefore be risking preliminary discovery orders. The trial described in the paper, could never be described as ‘massive’.

        So ‘mass subpoenas’ are avoided. In the trial proposed, with the limited number of notices, the number of preliminary discovery orders required would be quite small.

        • >> I think you leap fearlessly to the wrong conclusion in support of your own story-telling. Firstly, RHs have never disputed their ability to request court orders to obtain customer information. They simply complain that it is too expensive a process.

          Steve, I think you and Renai are talking about two different things. It is my understanding that in the US the RHs take a massive list of IPs to court and get the subpoenas for each without each individual IP being examined.

          It is a bulk process where the ISP rights are trampled all over in the interest of making it easy for the RH. This is a disgrace a indicative of the decay of the US legal system where the tables are tiled in favour of big business.

          But I think your response is correct, there is nothing stopping RHs seeking subpoenas for 10000 accounts next week. But I believe the judge would examine each properly so it wouldn’t necessarily be any less costly.

          If I have misunderstood any of this please clarify/correct it. There are some fundamental differences between Australia law and US law and as such it isn’t possible to extrapolate US circumstances and apply them to Aus.

  5. I am not sure how you could call the movie “Nude Nuns with Big Guns” a porno? perhaps watch some porn sometime…

  6. This is exactly the scheme that Australia needs, that if adopted, will short circuit the US style ‘pay $3,000 to make this all go away’ system. This isn’t being thrown to the wolves – this is the wolves saying ‘hey, I see you’, then ‘hey, still seeing you’, followed by ‘ummm…still here, still seeing you’. Honestly, anyone who then ends up in the belly of the wolf has nobody but themselves to blame.

    As for the scare mongering about the Movie Rights Group – surely the fact that they appear to have vanished into thin air is an argument for the inability of that US style approach to work in Australia? I mean, it’s not like another company has jumped in to fill the void, which surely would have happened if there was a genuine chance of making money by working this way.

    It seems that with this proposal, the ISP’s have put plenty of safeguards on the customer side, with a whole heap of opportunities for the customer to stop breaking the law (because let’s face it, at the end of the day that’s what’s happening). If anyone decides to ignore those warnings, then really, they deserve whatever comes their way.

  7. Also, I do struggle to understand how you can open this opinion piece by saying “…opens the door for content owners to start taking hundreds of thousands of Australians to court for minor offences …” before later in the article also stating that “The damage as a whole will be limited — with ISPs committing to each only process 100 maximum infringement notices each month during the 18 month trial period”.

    So we’re not talking about hundreds of thousands at all, are we? If each ISP is limited to 100 notices a month, we’re looking at a maximum of 6,000 notices a year. Of those 6,000, there will need to be people who ignore the warnings, and continue to download illegally, and also receive follow up warnings. Eventually, there will need to be people who continue to ignore the warnings, and then there may be some court action.

    Honestly, if we ended up with a dozen people facing court under this scheme, I’d be surprised. But there’s nothing like some hyperbole to kick off an opinion piece, is there? Labeling a story ‘Opinion’ doesn’t excuse you from making some type of effort to at least try to use facts in your reporting.

    • I take your point, Stuart, and I did think about the number issue when writing this piece. However, I believe that ultimately the content owners will not settle (in any way, shape or form) for an ISP industry solution which is limited to just 100 notices per month. 10,000 per 18 months? As a number of people have pointed out, AFACT sent iiNet something like 2,000 with respect to that trial alone. The ISPs’ lowball number is, I believe, a negotiating tactic. You start low, then let them push you up to the level which you’re actually willing to settle for.

      • That’s a fair enough point Renai – I just wish that it didn’t take a reply to some criticism of your story, to get to the heart of what you actually think. I dunno – the opening of your story just came across as very – sensationalism where it wasn’t really necessary.

        I’m quite willing to accept that the ISP’s proposal won’t be accepted as is, and that more than 100 people per ISP are warned per month. I don’t actually think the number is the important thing here though. Even if every person who was detected illegally copying stuff was warned, the point is this mechanism allows for warnings, and a chance for people to change their behaviour – before they get a demand to cough up thousands of dollars in cash from some extortionist operation.

        Whether this is adopted or not, at least someone has put something on the table that goes beyond ‘pay up or we’ll see you in court’.

        • No worries — yeah I perhaps could have structured the story differently. May take another stab at it early next week :)

          “at least someone has put something on the table that goes beyond ‘pay up or we’ll see you in court’.”


    • >>”If each ISP is limited to 100 notices a month”

      Those that have read the paper will have noticed that a trial only is proposed. For the purposes of the trial, the notifications would not be automated. They would be simple, manual processes.

      If ‘everybody’ thought the trial was successful and other details like evidentiary quality control, indemnities and costs were sorted out, then automation could be expected to to be employed. No ISP is going to spend good money on rebuilding internal systems to deliver the significant changes required.

  8. yet another garbage article, just trying for site hits. I should block this site from my browser and go somewhere with reputable articles

    • I’m happy to take my knocks! Let me know what sort of stuff you’d be interested in reading instead, and I’ll be happy to try and produce that sort of content. However, I’m not a troll — I only write what I personally believe after weighing the facts.

  9. Instead of spending all this money to sue ISPs and pirates and everyone else, why not actually ASK some of the people who pirate content WHY they pirate and where possible take steps to make legitimate content attractive enough that people dont pirate anymore.

    The #1 thing that would help stop piracy in this country is if the content providers actually made the content people want to consume available in this country. I consume a lot of big media content legitimately (just the other day I went to the cinema to see Moneyball and I have a big library of DVDs on my shelf).
    But there is a lot of content I want to consume legitimately but am unable to and so my only option is piracy. (either downloading from p2p or watching on YouTube)

    For example, I would LOVE to be able to buy some of the excellent History Channel documentaries. But I cant, the only way is to pay huge costs per month to subscribe to Foxtel and hope that the documentaries I want get aired at a time I can watch them (or record them with an IQ PVR). There is no way I can legally purchase this content to keep and watch over and over. Plenty of other interesting documentaries also similarly unavailable. (either tv documentaries or feature length documentaries)

    I would LOVE to add the cult classic Yahoo Serious films (Young Einstein and Reckless Kelly) to my DVD library but Warner Bros refuses to make either film available on DVD in this country.
    Or the Real Ghostbusters cartoon series. Season 1 is available (and I have it on my shelf) but none of the other seasons are available. Plenty of other TV series that are just not available (or that only have 1 season available or a “best of” disk available)

    I am sure I am not the only person in this country who has pirated content but would happily have acquired said content via a copyright-holder-approved method if doing so was an option.

    • I agree. A lot of the blame for the level of illegal downloading should fall at the feet of the rights holders, not that they would ever accept that.

      Another example is the seven season TV series Malcolm in the Middle. I really liked that series but only the first season was ever released anywhere in the world. There’s not really a way to add it to your media library legally.

  10. This is actually a Good Idea.

    Ultimately, ISPs should follow the law; that’s effectively the reason ISPs have resisted; they have to honour a court subpoena (such as for child porn, etc) and as such Rights owners should follow the same rules as pretty much anyone else.

    What they are trying to do, ultimately, is “encourage” the Rights Holders and their knee-breaking goon squads to do the same thing.

    So far, said Rights Holders have been very keen to ignore law, ignore court process and gun directly for people. That’s a bad thing, as it’s assumptive that a breach is somehow illegal. Further, costs are typically “made up” amounts that have no basis in any actual cost.

    People might argue there is a cost following a legal court process. Good.

    This will help reduce the ridiculous shotgun approach of combining mass internet account lockouts with assumptive wrong-doing. It will in fact ensure that Copyright abuse claims follow a legal process. Just as the AFP would have to, for example.

    Which means instead of a bunch of people being fined (arbitrary costs) for potential copyright infringement (e.g. watching a show screened in the US, UK before it makes the six-month-plus travel to Australia) and instead focus on people actively, purposefully sharing said content (or pressing DVD’s for sale).

    It maintains the ISP as an independent transport, not an automatic accessory.

    We have laws for a reason. We also have a courts system to try and do their level best to ensure due process occurs. That’s where these claims belong. It keeps everyone as honest as possible and should reduce the incredible numbers of false claims that are forever showing up in news sources.

  11. Renai, I think you are overlooking significant aspects of the proposal.

    For Rights Holders to be a party to this they have to submit their data mining software and protocols to an independent audit. As far as I know there is very little known about how they operate these systems and the reliability of them. I believe when giving evidence about these systems in court it has been done in-camera, I think it is a major step forward that these systems are independently audited.

    The other thing about the subpoena process, as has been pointed out, it is already available to Rights Holders if they follow correct legal process.

    But under this process the ISPs are proposing to act as a proxy for sending out notices for Rights Holders without divulging any personal information. There is a cost for them to do this so they expect to recover those costs, fair enough.

    So for the Rights Holders to be able to subpoena they first have to have gone through the 1 education notice + 3 warning notices before the discovery notice.

    So it looks like alleged infringers would not only get 4 separate notices before any real consequence, they also get the (5th) discovery notice so they know that the Rights Holders are intending to subpoena their details.

    All along the way the alleged infringer appears to be able to appeal the notices.

    Until the Rights Holder is successful in seeking and executing a subpoena they have no more information than what is already publicly available. ie The IP address and which ISP the IP address belongs to. Although it does raise an interesting question about companies with their own ip allocations that are not ISPs.

    I think it ia also interesting to consider how this might work under IPv6, most IPv4 is dynamic assignments and the IP address of a customer doesn’t stay constant in the long term (static assignments aside). This seems to be a protection to stop Rights Holders targeting those with current notices.

    I suspect most ISPs will issue static assignments under IPv6, but likely to be a block of some size. This may mean that they are consistent .

    In all it looks like the ISPs have given this some serious thought and put forward an intelligent and fair proposal. I think this will be reflected in the rejection of it by the Rights Holders.

    • “In all it looks like the ISPs have given this some serious thought and put forward an intelligent and fair proposal.”

      Oh come on – they’re codifying the bare minimum legal requirement that the Fed Court has told them is the law so far and then adding a whole range of artificial limitations to water down any beneficial effect it might have. If it was offered by ISPs 5 years it might have been intelligent or fair. Today, it amounts to greed and the continued pursuit of revenue at the expense of rights holders.

      Firstly, they limit notices to a hundred….what a joke, iiNet knows full well that at any one time there are thousands of their contracted customers using their service to infringe copyright, they know that most users with biggish data plans infringe, they know the proportion of traffic on their networks that is Bittorrent and they throttle bittorrent and cache bittorrent materials on their network. They have the power to mitiigate infringement yet they do nothing about it because it’s in their commercial interest not to do so.

      They’re not even offering to tell rightsholders which are the repeat infringers so that rights holders can target the problem downloaders.

      They’re looking to make even more money from copyright infringement by “accrediting” detection technologies, in the same way they do under the Family Friendly Filter scheme (the one where the IIA charges thousands of dollars to “accredit” leaky filter software).

      A proper scheme is one that is arrived at with the agreement at rightsholders, ISPs and consumers – not one agreed to only by ISP lawyers and accountants.

      Rightsholders and reasonable people will call the scheme for what it is – a hollow, worthless, political vehichle that attempts to swing favour prior to the High Court’s decision – and then they’ll reject it, as it should be rejected.

  12. This is dealing with the effects not the cause. The cause of this is greed by the “Industry”, who also want to control the distribution of content created by others, on which they profiteer. The problem is all this goes against the origins of Copyright itself, which gos back well over 400 years. The Industry has been trying to keep the truth hidden regarding this and the start of the Stationers of England which is the modern day equivalent of the MPAA / AFACT, etc.

    The fact is copyright was designed to allow sharing of creations at no cost to anyone, and no controlling firm / organisation had jurisdiction over this work. Basically a medieval version of P2P / BitTorrent, but people go greedy so all material created and distributed had to go through an agent who made a profit but retained control of these creations. The big studios (movies / music) are all afraid of losing control of distribution which affects their pockets – this is all its about. The “industry” have decided to swap the turn “copy” to “pirate” in order to use words which are loaded terms. Copyright is an outgrowth of privatisation.

    I suggest everyone read the origins of copyright here:, but for everyone’s convenience, I have included a couple of excerpts:-

    1. “There is one group of people not shocked by the record industry’s policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers, which today includes record companies. But now that the Internet has given us a world without distribution costs, it no longer makes any sense to restrict sharing in order to pay for centralized distribution. Abandoning copyright is now not only possible, but desirable. Both artists and audiences would benefit, financially and aesthetically. In place of corporate gatekeepers determining what can and can’t be distributed, a much finer-grained filtering process would allow works to spread based on their merit alone. We would see a return to an older and richer cosmology of creativity, one in which copying and borrowing openly from others’ works is simply a normal part of the creative process, a way of acknowledging one’s sources and of improving on what has come before. And the old canard that artists need copyright to earn a living would be revealed as the pretense it has always been.”

    2. “To read the true history of copyright is to understand just how completely this reaction plays into the industry’s hands. The record companies don’t really care whether they win or lose these lawsuits. In the long run, they don’t even expect to eliminate file sharing. What they’re fighting for is much bigger. They’re fighting to maintain a state of mind, an attitude toward creative work that says someone ought to own products of the mind, and control who can copy them. And by positioning the issue as a contest between the Beleaguered Artist, who supposedly needs copyright to pay the rent, and The Unthinking Masses, who would rather copy a song or a story off the Internet than pay a fair price, the industry has been astonishingly successful. They have managed to substitute the loaded terms “piracy” and “theft” for the more accurate “copying” — as if there were no difference between stealing your bicycle (now you have no bicycle) and copying your song (now we both have it). Most importantly, industry propaganda has made it a commonplace belief that copyright is how most creators earn a living — that without copyright, the engines of intellectual production would grind to a halt, and artists would have neither means nor motivation to produce new works.”

    3. “But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators.”

    Take the time to read the information I have provided in the link and you will see this is all part of a one massive lie and indoctrination by the industry upon the people. I for one refuse to follow their dictum and I choose to stick by the original principals of Copyright, not the corporate version.

  13. First the government forces the NBN down our throats so they can filter and thereby watch everything we do and say. Now this.

    This has *nothing* to do with protecting copyright. These ISPs are just showing themselves to be the greedy backstabbers that they are – happy to rake in our monthly internet fees, but want no-one to actually use the download quota they’ve paid for.

    The other main reason for chasing p2p users/etc is that it keeps lawyers rolling in cash. No wonder they don’t want to discuss it. If something was agreed on, half or more of the lawyers would lose their gravy train.

    Here’s a list of the low-life, backstabbing ISPs:


    It’s none of their damn business if I “infringe copyright” by downloading that episode of House I missed this week – then watched it – then deleted it. Avoid the above scum ISPs like the plague – and show your support for the others, who want to keep their noses out of our business – by churning to one of these instead:


  14. Well said just Greg.

    The ISP’s are well aware that the money is in mum and dad users who havent even heard of BitTorrent.

    Because lets face it , you really dont need super fast internet for facebook and online banking…. sure there are a few legitimate uses for a high download speed, yet “linux isos” would be the main motivation for most people to have a bigger download limit and higher speeds.

    The business model of an ISP is flawed if all content is pay per use. If we go to a user pays for all content, then really the ISP is irrelevant and so are access fees, transmission lines really dont justify such a huge end cost per month. Connection costs could well become much more like a power / gas situation and then you just pay for your content which the providers could then subsidise your connection pending the amount of content you buy..
    Or like Amazons new kindle or Free to air tv, advertising covers the costs ….

  15. Internode (as part of this illustrious group) offer a free newsgroup service … so how can they be offering that on the one hand and doing this on the other?

    Also – I download. I download heaps! Yet they are all TV shows that either are never shown over here or a 5 years behind and will never catch up! Seriously … if Mr Dalby or any of the others think that is “fair” then they are deluded. We are owned here in OZ by being a backwater for content and beholden to either anti siphoning laws or a lack of any TV service giving a damn about the different tastes of many and instead serving up the same garbage day in day out.

    Steve, why dont you and Simon (and the rest) promote rules to allow for a netflix type service, maybe a rhapsody one too … look at how online models actually frigging work and really do limit the amount of piracy instead of get cozy with retards like AFACT that have no idea their are alternatives to their tired old methods that are stuck to an FTA, one channel model that suits only their advertising bottom lines.

    Oh and one other thing and maybe why kids are downloading games so much over here … go have a look at Steam. See how the US prices are v Australian ones … for downloadable content! Even kids can see we are getting ripped off down here in this wide brown land … and not one government agency or private company is doing anything to right the wrongs of bullshit pricing models that are so out of date … especially in the digital age.

    So Steve, how about you come back with better alternatives than even suggesting a warning is going to help. It won’t. You know as well as anyone that once this happens people will find other ways and means to an end, and that end is all about choice, but hey that sounds like it might not fit the logical model you and the likes of AFACT would ever consider being appropriate for a place like Oz where we ‘obviously’ have no idea what is going on in the rest of the world!

  16. You know… if the ‘rights groups’ really want to stop piracy, I have a suggestion.

    1) Release content in all regions at the same time
    2) Make said content FAIRLY priced and not regionally fucked… sorry, ‘adjusted’ is your term isn’t it? Why anyone would pay say, $90 for a piece of content that costs $40 in the US is beyond me. Make prices fair and you’ll find we’ll pay.


    3) Make content actually worth buying.

    Too many movies or what not out there are NOT worth the asking price, and there isn’t a way we can preview the content fairly (read as: an unbiased preview, not a cooked trailer showing only the best bits) before we buy so we don’t get burnt. Suffer buyers’ remorse a few times in this way and no shit people are going to pirate afterwards.

    Make your shit worth buying and owning, and don’t make outright shit, and you’ll find people will be more willing to shell out the hard-earned cash.

  17. If my internet service can be disconnected as a result of the behaviour of one of the people that use my ADSL service (the many employees at the office), I wonder why the likes of BigPond and iiNet can’t be disconnected by their respective service providers for permitting “their” users to infringe on the rights of others. Surely this is the most effective way of ensuring that BigPond et al are responsible for their users actions.

    I’m sure that a BitTorrent packet passes through half a dozen “pipe” networks before ultimately coming down the last mile of an ADSL service. Surely they should all be targeted for disconnection too?

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