ISPs propose new anti-piracy warning scheme


news A coalition of most of the nation’s major ISPs has proposed a scheme for handling Internet piracy which would see Australians issued with warning and educational notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if they keep on pirating content online.

The coalition includes Telstra, Optus, iiNet, Internode and Primus, but not TPG, Dodo or Exetel. It is working on collaboration with network equipment manufacturer Ericsson and industry groups the Communications Alliance and the Internet Industry Association.

In a statement released this afternoon by the Communications Alliance, the group noted that the scheme would require ISPs to forward “education and warning notices” to customers whose broadband connections have been detected undertaking activity which “might” infringe copyright laws. Once a customer had been forwarded three warnings and one education notice, ISPs would send what is terms a “discovery notice” to the account holder, warning them that they have apparently failed to address issues set out in the previous notices and their details may be subpoenaed by the copyright holder which had filed the complaint.

The ISP will, at that time, also notify the copyright holder that the Internet user concerned had failed to address the issues of online copyright infringement. The copyright holder may then seek to apply for access to the Internet user’s details and identity through a subpoena or ‘discovery’ application directly with the ISP.

“Should the ISP be served with a valid preliminary discovery order (or subpoena), the ISP will be required to comply with the order, which may require the ISP to disclose the account holder’s details to the rights holder,” the ISPs noted in a discussion paper proposing the scheme. The paper is available in full online (PDF). After they had obtained Internet users’ details, copyright holders would then be able to take legal action directly against the users.

The scheme does not provide for the termination of Internet user’s broadband access, not for any action to be imposed on customers directly by ISPs; in addition, the ISPs notes that it gives consumers the right to appeal warning notices.

In Communciations Alliance’s statement, the organisation’s chief executive John Stanton described the initiative as a positive step by ISPs to address what he said was “a complex and contentious set of issues that society had been struggling with for years”.

“We believe the Notice Scheme can greatly reduce online copyright infringement in Australia, while protecting consumer rights, educating consumers about how to address legal online content and helping rights holders to protect their rights,” Stanton said. “Equally important is the need for Rights Holders to ensure that consumers have access to legal and affordable content online, to reduce the motivation to source content in ways that might be illegal.”

The ISPs are proposing that the scheme would be undertaken on a trial basis over an 18 month period; following this period, an “independent evaluation” would be conducted into its effectiveness, including examining whether it produced a real change in consumer behaviour, and whether it should be continued in its initial form or modified for improvement.

Stanton said the proposal by ISPs would require further consultation with Rights Holders, consumer representatives, the Federal Government and the broader ISP sector before full details and an implementation timetable could be finalised. “We look forward to continuing the discussions with Rights Holders, consumer representatives, the broader ISP community and the Federal Government, then to launching an agreed scheme that is that is efficient, fair and cost-effectivefor all parties, particularly consumers,” he said.

The proposal of the scheme comes as the Federal Attorney-General’s Department has recently been holding talks between content owners and ISPs over the issue of online copyright infringement. However, the talks have been held behind closed doors and few of the parties involved have been willing to reveal what was discussed.

The ‘subpoena’ approach to dealing with online copyright infringement has also been a subject of great debate over the past few months in Australia. The approach is one proposed by a new organisation, Movie Rights Group, a new organisation which was set up in Australia last year with the aim of protecting the copyright rights of content owners in the film industry. In mid-October it was revealed that MRG 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.

However, since that date, Movie Rights Group’s website has been shut down, and the organisation’s vice president of sales and marketing has left the organisation.

Opinion/analysis to follow in a separate article.


  1. At least with a warning system you get to know when someone is tacking onto your internet, but it’ll be a shame for all the numpties who know little, and have a leecher who knows a lot.

    It might see a new IT industry grow, you can hire a locksmith to put locks on your home, you could hire the IT equivalent to lock up your internet. With both you could also do it yourself if you want.

  2. is it weird for iiNet to support the assertion that sending a notice to an account holder alleged to have infringed copyright is a reasonable thing to do under the Copyright Act, when at the same time they’re about to be appear before the High Court to argue the exact opposite?

    • Billy,
      We will not be arguing the ‘exact opposite’ and we never have.

      This proposal is absolutely consistent with our long standing position, that is, that we will not release private details unless required by law, we will not restrict or terminate internet services on an allegation and that there is a perfectly adequate legal process already available which rights holders should use to protect their rights.

      • Thanks Steve

        Ok – now iiNet now thinks it is a reasonable step to send out a warning letter to a customer alleged to have infringed copyright.

        So what, exactly, has changed from 2 years ago when you didn’t think it was reasonable to do the same (which is why you’re now in court)?

        • Dessy
          What has changed ?
          I think you’ve answered your own question.

          We have been part of the litigation brought by the movie studios. We’ve been to the Federal Court, the Full Bench and next week in the High Court. Along the way, four Federal Court judges have given opinions about a lot of things. One of the things that they’ve found is that, in some circumstances and with appropriate levels of evidence, reimbursement of costs and indemnity, it is reasonable to send notices.

          • ok – thanks. Of course it’s entirely possible that the High Court rejects those arguments but I think it’s good you’re coming forward, making those admissions of liability and shouldering some responsibility – I mean you make so much money from pirates who choose big data plans…it makes sense that you take reasonable steps to avoid authorising infringement.

            The scheme is a very small step that rights holders won’t agree to in its current form but it’s a step nonetheless. Of course the notification trial you’re proposing is very similar to the trial run by six ISPs in the UK three years ago – and look what happened to them! They got the Digital Economy Act.

          • “Along the way, four Federal Court judges have given opinions about a lot of things. One of the things that they’ve found is that, in some circumstances and with appropriate levels of evidence, reimbursement of costs and indemnity, it is reasonable to send notices.”

            Steve, one FFC judge may have decided that costs and indemnification were required but he also adjudicated (as did the other two FFC judges) that sending notices was a reasonable step for ISPs to take along with “suspension and termination.” The latter two are glaringly missing from your proposal. If you are going to quote from the court room at least do it accurately.

      • “there is a perfectly adequate legal process already available”

        Hey Steve,

        as I’ve posted in other threads, I’d like some clarity from iiNet and others if possible as to what extent this perfectly adequate legal process has been tested and is being used. Are you guys already receiving subpoenas from rights holders for user information? How many? How often? And so on.



  3. “The coalition includes Telstra, Optus, iiNet, Internode and Primus, but not TPG, Dodo or Exetel. It is working on collaboration with network equipment manufacturer Ericsson and industry groups the Communications Alliance and the Internet Industry Association”

    Did they consult with anyone that’s against copyright infringing p2p file sharing?

    • >>Did they consult with anyone that’s against copyright infringing p2p file sharing?

      I’m not sure you meant to imply that any of the parties to this paper support infringements using P2P.
      For the record all of the parties are “against copyright infringing p2p file sharing? ”

      Also it is public knowledge that the Comms Alliance members have been meeting with rights holders for over twelve months.

      • Maybe Billy is asking whether any rightsholders actually countenance your “scheme”

        By the way – now you’re here, can you tell us whether iiNet caches copyright materials on its network (such as popular materials shared through p2p networks) and/or whether it throttles bittorrent traffic to mitigate the network costs of p2p file trading?

    • Not sure that is correct. The ‘numpties’ approach is to alert the account holder that their Internet link may be being used to infringe copyright. This alert is done in a timely manner such that the account holder has the opportunity to do something before it becomes a legal fight. However noting who authored this proposal and keeping Mark Newtons comments from previous posts in the back of my mind I suspect that this may not fly. Mark’s observations have been that no matter how far you are willing to bend, the rights holder organisations will not compromise. They want it all and they want it now.

      Another notable point in the release is: Issues for further discussion include how to fairly apportion the costs of establishing and operating the scheme between ISPs and Rights Holders.

      It is dead at that point. Why would the rights holder organisations accept a proposal which includes a cost to have a 3rd party law / term of contract enforced. Sadly the rights holder organisations do not appear to appreciate the erosion of active community law enforcement that has occurred within Australia and that we all pay as a consequence of this, either in increased insurance premiums, private security at functions or just in terms of reduced lifestyle options. If they want to do business here then they have to appreciate that short of murder – no fee no law.

    • >>The fact that an IP address doesn’t identify a person seems to escape these numpties.

      Some of the Federal Court ‘numpties’ disagree with you. I suggest you read previous judgements which (In a nutshell) have decided that the account holder can both be identified by an IP address and also held liable for the use of the account.

      • The courts in the uk have rejected the ip identifies the account holder argument already, although its never been tested here. Also the account holder may not be a real person (something that Steve has already pointed out).

  4. So the organisation informing me I “might” be indulging in activity that “might” infringe copyright “might” themselves be a paedophile? “Might” this be a bit of a specious argument?

    Not disagreeing with the intent; but start again and come up with a better approach than this! This is laziness to the point of irresponsibility!

  5. sigh defacto 3 strikes law
    knew it now after reaing the preposal looks like a dogs breakfast and the only thing that will stop will be
    those that get hit and not taking into account those on private trackers and seedboxs
    the only way they can get into those is an invite or pay but hard it will be
    not this will i see working

    • >>sigh defacto 3 strikes law

      Sigh. Wombat, you need to do a bit more reading.
      This is a notification scheme, there is no termination contemplated and there is no ‘law’ proposed. The law exists today which allows rights holders to prosecute infringers, they just haven’t really used it yet.

      • true steve but what is not stopping it after 18 months of not working????
        i did read it and i bet at some point it was brought up and rejected and will be brought up again!
        playpened again and again and again

      • “The law exists today which allows rights holders to prosecute infringers, they just haven’t really used it yet.”

        From my reading of the ISPs’ proposals, the ISPs are proposing that in the case of repeat infringers — and bearing in mind that ‘repeat infringers’ could mean downloading no more than five TV episodes — they will hand over user data through a subpoena process so that this legal process can be used.

        In short, you’ve proposed a system, Steve, which features as its end game ISP cooperation with the content industry to sue your customers. Is it just me, or does that sound a little … unsavoury?

        • >>”In short, you’ve proposed a system, Steve, which features as its end game ISP cooperation with the content industry to sue your customers”

          No. You are quite wrong.

          The end game, as you put it, is to stop people infringing copyright.

          People who persist in infringing, despite repeated warnings that it is wrong, that they should stop and that they are under observation (by the people whose rights they they deliberately choose to infringe) are taking their own, well informed risks of prosecution.

          In fact it is the opposite of what you claim. We are proactively proposing to inform our customers that they’ve been spotted, so that they can avoid prosecution by changing their behaviour.

          Why are you so determined to turn it upside down ?

  6. Do you get notified 3 times, for any content/copyright holder and that’s it?

    Or is it 3 times notified for each content breach/copyright holder?

    • From reading through the proposal it is a staged process (the flowchart on page13 though is not that intuitive) in that:

      1. The Rightsholder (RH) needs to send a notice within 14 days that an infringement MIGHT of occurred
      2. The ISP checks to see if the RH is authorised to send the notice to them and if they are using appropriate evidential methodology
      3. The ISP tries to match up IP & Time stamp with a Customer, if no customer informs RH of such.
      4. If Customer exists, ISP then sends an EDUCATIONAL notice to the customer which notifies them that they MAY of infringed something on a specific date/time, what their legal rights are, and that they can appeal the Educational notice within 21 days (the grace period)
      5. Customer action/inaction – up to customer what they prefer.. getting legal advise is in their best interest though.
      6. If no more notices sent by ANY RH (this is where it gets interesting in that I believe it should be specifically the same RH per notice system and not ANY since we have possibility of collusion b/w RH’s then) to ISP regarding that specific customer within a 12 month period EVERYTHING resets back to original status.
      7. If a further notice sent by ANY RH (refer to point 6 for my thoughts on this) to ISP about customer then a WARNING notice is issued to customer stating similar things as in Educational notice
      8. After Three(3) Warning Notices being received from ANY RH per customer (Again I disagree with ANY) a DISCOVERY notice (probably not a good name for this notice since it could be construed as a court order…. FINAL NOTICE perhaps?) is sent to the customer stating the same things as above though also stating that the ISP will notify the RH that the customer has failed to address the alleged wrongful actions.
      9. The RH can then go through the standard process for asking a court to grant a subpoena, which I can not see any court NOT granting since the above reasonable steps have been undertaken, which would allow the RH to obtain identifying information from the ISP about the customer allowing the RH to take INDIVIDUAL court action on the customer themselves.

      There is still the ability for an ISP to obtain a subpoena if they so wish without going through this process, though a court under this situation would be highly hesitant to grant such an order, especially if it was for a class/multiple action if this sort of scheme was already in place.

      Personally I think this scheme is a very equitable process (though the ANY RH needs to be looked at further) and allows a semi “safe harbour” ability for ISP’s, something that is highly needed. It also requires the RH, if they want to be authorised (and a court would frown upon any who weren’t) to open up its detection,, evidence collection and internal processes to independent auditing. This part alone is enough to scare RH’s and companies like GuardaLey, DtecNet, silly since it will show or not whether the evidence they collect is cogent and unequivocal.

      Also it will show whether the data that the RH’s point out to everyone about how piracy is allegedly harming the economy (well .45% of the economy since that is the whole of GDP direct/indirect contribution) is true, bogus, or in between.

      Lets hope the trial gets approved by all and we can then see in 18 months what affect it will have

  7. So, by subpoena do they mean an actual subpoena from a court or some made up shit they’re trying to pass off as a legal document?

    • They mean an actual document from a court. And the Attorney-General’s Department has already proposed to streamline the process by which a number of subpoenas could be filed simultaneously. This is the same approach proposed by Movie Rights Group — they had examined the case extensively for it to be used in Australia.

  8. i think this is a great scheme as long as the three warning notices and one education notice are only deliverable at the end of each calendar quarter, i.e. Mar, Jun, Sep, Dec, and the notice count automatically resets to zero on the first of January.

    with these amendments, a scheme we should all embrace :)

  9. now i would like to know what about pulic domain stuff
    some of that stuff is on dvd and some say they hold the righst to it
    yet i can recive it free or download it free.
    so what about that then there is no black and white at all.
    seems to me to be your pinged the isp free from any blame.
    and the may have been infringed apon
    what is to say a file that is renamed the right one and turns out to be some thing diffrent.
    i assume that you can say oh that is not the file .
    all the presumtion is put back on to you to prove you didnt.
    so your guilty automaticaly and you have to prove that you are not.
    where as it is they have to prove you did.

    • I don’t see anywhere that they have stated that the onus of proof is placed upon the account holder, other than to defend against an accusation by the rights Holder as it is now. They propose to set up an Independent Council, or a Judiciary Tribunal (Tribunal would be better in my opinion, though cost more) that allows the Account holder to defend against the notice. In fact that is better than what France, NewZealand, or UK currently have in place.

      If it is shown that the RightsHolder had no right to send the notice to ISP and knowingly did anyway then I suspect remedies for loss of time, income, emotional stress etc could be given to the customer depending on how egregious the matter was. This is how civil court works nowadays anyway, and being a tribunal/council I would also assume it would be in a non adversarial setting where neither side would have ability to have legal council (or legal aid would have to be provided) as in such tribunals like Fair trading, Rental, etc.

      Remember this is only a preliminary Scheme, only the ISP’s have signed off on it as a proposal. Still has to go through all the other bureaucratic BS first

  10. Ok so ISPs and the Communications Alliance think that the internet should be policed for piracy…… Do note though the internet was originally designed by the US military for the purpose on encrypted messages back and forth then in the 1980’s the internet went public for the use of researching the internet for referencing materials and used as a free media for the voice of people and now the people are media hungry only due to the need for things right now as we are in a fast paced lifestyle that present forms of media can’t keep up with the demand. So why penalize people for that, and because in most of the UN nations have one law that is used in each of those nations allowing us the freedom of information and the internet is the largest resource of information that is not governed by any one country though America controls the backbone infrastructure they maintain it with diligence and has been safe and operational for over 50 years. Information should be free as should the Digital Property Rights(DMR) and Intellectual Property Rights (IPR) to anything that has been and will be on internet due to the fact that we still pay for internet and phone here in Australia use that big fat $ you take from us to pay for the freedom to download as we choose and see fit because the truth is that companies like Telstra still charge line rental to recover the initial layout of their copper lines that have been in place for over 30 odd years which have paid for the layout several times over, so if your charging us for our internet the ISPs should be the ones paying for the DMR and IPR for all of their users and further more charging the Tier 1 Network Providers ( as well. As in Linux Philosophy “Free & Open Source Software Development & Distribution” so should Freedom For Information & Media To All !!

  11. Well I don’t mind a warning it tells me to move over to BTguard sooner. Besides there are plenty of places you can download Tv and movies without ever touching the torrent protocol so in this case a warning for me is good
    Does anyone know if they intend to make this proposal retroactive?
    So hypothetically if I downloaded a movie or a TV ep in 2010 they can warn me for that?

    • “1. The Rightsholder (RH) needs to send a notice within 14 days that an infringement MIGHT of occurred”

      I dont see how it could be made retroactive.

      I really like the sound of this process, it really seems fair, it puts the onus of proof on the Rights Holder, they must be able to prove that on the balance of probabilities (civil court) the downloaded infringed on copywrite.

      To first make that accusation they must be “authorised”, meaning that they must use an approved detection method that will be admissible in court or deemed to be “sufficient evidence” to accuse a person of infringing. So the RH must first go through this process (I could see this being a great idea for companies dedicated to this, being hired to target specific files for RH’s).

      None of the other bills or proceedures have ever made sense to me, for any action to be taken on an internet user, including obtaining there personal details. There has to be evidence of infringement for the civil court, ISP’s will always comply with court orders.

      Past mistakes:
      ISP’s have always stood up for there users rights, not our right to infringe.

      ISP’s should not have to forward notices on to customers without good evidence that a user has infringed (Hence Authorisation for RH’s detection methods)

      ISP’s will completely comply with this system as it is fair, there will be a number of notices to ensure that it isnt an accidental detection, accident on behalf of the user, or some sort of unauthorised access by another person (think how this could impact McDonalds wireless!, hence the ability to explain within 21 days)

      After the number of required notices have been sent, the RH will then be eligible to apply for a court order to obtain documents / details of account holders, to then contact / initiate court process.

      My experience,
      I infringed when i was younger, mostly due to not having an income and having abit of tech knowledge, nowadays I have everything legit, online content distribution for me, started with the steam gaming service. I have purchased so many games through this service its not funny, that service is brilliant and it works.

      If there were a similar service for movies, so i could have an online collection of them, accessable from any compute i log in at with my account, download / stream that movie as much as I want, that would be perfect, even a small fee per month would be acceptable. But i would want all of the content in that service, I cant see that happening anytime soon with the way Content Holders refuse to move forward and money grab. It the digital era now guys, how about you catch up?

      If this also meant i didnt have to drive 500km’s to the nearest cinema to watch a movie before it takes 6 months to hit DVD, that would be nice too.. really? no other way to see a new release with the rest of the world then to goto a cinema? give it a week and offer it on a digital distribution network and you have me sold.

      My 2 cents..

  12. Meh, all Australians should be on VPNs anyway, since the government thinks it’s acceptable for ASIO to snoop traffic and pass on anything they find to all and sundry, from the ATO to MI6 and the CIA. Data retention plans just makes this all the more horrible.

    Our ISPs would prefer not to know what we’re up to and this plan of theirs seems to be a not-so-subtle hint to “get your arse behind a VPN, now!”

  13. My question is simple then… How does a Rights Holder (Universal, Sony, EMI, Paramount, etc) even know if Joe Bloggs is downloading the latest piece of X-Factor trash?

    Is there any stop mechanism to prevent RH’s from just spamming ISPs with requests?

    It looks like big brother’s just getting bigger to me. What’s next… entire floors of ISP offices devoted to peons watching connections to look for pirates?

    Argh!! Avast me hearties! There be Sharks in these here waters.

    • They would either setup a honey pot or connect to a peer and download off them.

  14. I’d love to see what these ‘educational’ notifications look like.

    Will they tell me where I can go buy movies/TV shows online?

    Will they tell me where I can buy content that isn’t available on the market in Australia?

  15. proxies here we come.

    Record companies and Hollywood are lagging behind by a decade.

    I can see how they can track the thousands of kids still using Limewire and Frostwire, but if you DL a torrent through a proxy, I don’t see how we could be tracked.

    Does this mean:

    a) They set up fake torrents with trackers in them, similarly mp3/movie files on P2P software and track the IPs of anyone who DLs them

    b) they get access to logs from ISPs?

    Also, what’s to say I can’t plead ignorant and claim I have an open network? Is it now illegal to have a network without a password? Am I responsible for every single visitor who uses my internet? What if some brutes their way into my network?


    • I believe as the account holder you are held responsible. But if you had an open wifi you’d have to argue that it wasn’t you it was someone else and if they seized your hardware you’d want to make sure it didn’t have any traces on it

  16. When one of you underage, bush lawyer noodle heads gets sued by a big player and damages are assessed based on the flow on effects of UPLOADING, then maybe you’ll sit up and take notice. If you are underage and you are thieving using your parent’s account, they won’t be happy when they have to sell their house, cars, furniture and wardrobe just to pay their own legal bill. You are ill informed and have obviously never been on the losing end of a successful litigation. Don’t forget that the Copyright Act also provides for criminal charges to be laid. If you are caught and investigated by the AFP and the CDPP comes after you, you may well do gaol time!

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