news The principal organisation representing content owners such as film and TV studios in Australia has declined to express an opinion on a plan unveiled last week by the ISP industry to deal with Internet piracy, stating that it was focused on its piracy lawsuit against ISP iiNet due to kick off next week.

The proposal unveiled last week is backed by major ISPs Telstra, Optus, iiNet, Internode and Primus, although other major players TPG, Dodo and Exetel have so far declined to back it. If enacted, it would see those pirating content such as films, TV episodes and games online served with warning and educational notices, with their details being provided to content owners through a subpoena legal process as a last resort.

The publication of the proposal represents the latest development in ongoing talks between the ISP and content industries over online copyright infringement in Australia, which have taken place both under the auspices of the Federal Attorney-General’s Department, as well as independently, in the shadow of the trial between iiNet and the Australian Federation Against Copyright Theft, which represents a coalition of film and TV studios.

However, this week the anti-piracy organisation declined to react to the ISPs’ move. “AFACT is focused on the High Court case next week and we will not be commenting on anything but the case at this time,” the organisation said in a statement issued late on Friday.

In general, reaction from consumers to the ISPs’ proposed scheme has been broadly positive, with the general sentiment among commenters on sites like Delimiter being that the proposal is a fair and moderate ‘middle of the road’ path that would allow the content industry to penalise repeat infringers under existing law, while avoiding the need to terminate broadband connections – an unpopular step which has been legislated in New Zealand and France, among other countries.

However, many in the industry do not believe the ISP industry will settle for the proposal.

“This will make no difference to rights holders,” wrote former Internode network engineer and outspoken digital rights advocate Mark Newton on Twitter on Friday. “Rights holders will let the scheme bed down for a year, then declare that it has ‘failed’ and demand changes to turn it into disconnection.” The scheme features an 18 month trial period, followed by an evaluation.

Newton added that ISPs were being “completely, utterly outclassed” in the online copyright infringement debate, referencing the ‘Overton Window’, a concept in political theory which describes a range of ideas in a public debate on a certain issue. Policy activists commonly take notice of the theory by attempting to shift the frame of public debate so that previously fringe concepts become more accepted.

In this sense, it could be implied that the perceived need for an online copyright infringement policy in Australia is being driven by a small amount of organisations which owned content. “It’s pretty much what the Occupy protests are about,” wrote another local Twitterer, Dean Rosolen, in response to Newton’s posts. “Rights holders (the 1 percent) heavily influencing policy for the rest of us (the 99%).

opinion/analysis
If I were an AFACT lawyer, the company’s non-response to the ISPs’ piracy proposal last week makes absolute sense.

AFACT is already committed to the High Court process with iiNet. The outcome of that trial, it should be incredibly obvious to everyone at the moment, has the potential to dramatically shift the playing ground which underpins the relationship between Internet users, the content industry, the ISP industry and even the Government.

If iiNet (for the third time) wins the case, then AFACT will likely be forced to negotiate with a great deal more seriousness with respect to the anti-piracy proposal unveiled by the ISPs last week. The ISPs will be in a much stronger position of strength. However, if AFACT wins the trial, then the ISPs will be in a dramatically weakened position – and it would seem likely that they will be forced to take a much stronger role in policing Internet copyright infringement amongst their user bases. AFACT will be in a position to make certain demands, backed by the High Court’s judgement.

In this context, it makes no real sense for AFACT to react to the ISPs’ proposal last week, or even to seriously negotiate. There is a bigger game afoot, and AFACT appears to be the only organisation at the moment to realise that. This is an organisation truly playing for keeps.

Image credit: Jamie Woods, royalty free

Related posts:

1. AFACT demands Govt action over iiTrial loss
2. AFACT to appeal some iiTrial court costs
3. High Court iiTrial verdict set for 20 April
4. AFACT appeals to Govt over iiTrial
5. EFA has mixed feelings on anti-piracy scheme

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1. Brendan
   Posted 27/11/2011 at 1:21 pm | Permalink | Reply

   AFACT are hoping they will win, specifically as that will open the door to pretty much unencumbered ability to continue the stand-over tactics and spurious, often inaccurate claims and seek to set artbitrary fine values.

   It will ‘sanction’ the notion of “assumed guilt” on the behalf of anyone with an IP address. Rights management by shotgun.

   The alternative, using the courts system (which has been all but non-existant) is far less palatable, as it assumes innocence and requires AFACT and other stooges to have factual, admissible evidence; it also means more effort (cost) expended.

   That’s the antithesis of a short, sharp assumptive fine to ‘punish’ the consumer for not using (extortionate) existing channels.

   Instead, the option being suggested by ISPs follows due process, will reduce the number of false-positives considerably and generally ensure AFACT, et-all get their pound of flesh without it turning into an unrestrained free-for-all money grab.

   I honestly hope AFACT are shown the door by the courts, the notion that the best practice for internet usage is to assume guilt, block or filter has had far too many negative precedents set.

   Once we start down that road, there is no turning back.

   • Roger
     Posted 28/11/2011 at 11:33 am | Permalink | Reply

     @Brendan:

     “Instead, the option being suggested by ISPs follows due process, will reduce the number of false-positives considerably and generally ensure AFACT, et-all get their pound of flesh without it turning into an unrestrained free-for-all money grab.”

     In this context, unlike the MRG model, AFACT were never after suing individuals to my knowledge. So a ‘free-for-all money grab” is a ridiculous statement as its the ISPs suggesting their customers should be sued.

     Insofar as “false-positives” are concerned, iiNet under oath and all four federal court judges have accepted that the process used by AFACT in determining infringements were accurate and had no error.

2. tom
   Posted 27/11/2011 at 11:11 pm | Permalink | Reply

   AFACT are fighting for one thing and one thing only and that is a corporrate fascist dictatorshi!

3. tom
   Posted 27/11/2011 at 11:12 pm | Permalink | Reply

   AFACT are fighting for one thing and one thing only and that is a corporate fascist dictatorship!

4. Rav
   Posted 28/11/2011 at 9:26 am | Permalink | Reply

   Disconnection is no longer possible as internet access was recently now classified as a human right under the human rights council.

   Australia is a signatory so it’s legally impossible to disconnection someone

   • Martin Eddy
     Posted 28/11/2011 at 9:50 am | Permalink | Reply

     Just being a signatory to the UNHCR holds no legal obligations. Australia could still legislate a disconnection policy for ISPs. I don’t think it’s very likely but it is possible

5. Jason
   Posted 28/11/2011 at 9:37 am | Permalink | Reply

   Renai LeMay is definitely trying to put the pressure on someone with these articles

   • Renai LeMay
     Posted 28/11/2011 at 9:57 am | Permalink | Reply

     ? I wouldn’t say I was trying to put pressure on someone with this particular article. Not sure what you mean.

6. NuSkope
   Posted 28/11/2011 at 10:10 am | Permalink | Reply

   Personally i like the ISPs’ proposed scheme, It keeps users Rights and details safe, while giving AFACT basically what they want. Additionally they cover all the costs.

   hell will freeze over before i spend 1 minute even investigating IP logs unless I’m getting paid for it. and it would be two decades into an Ice Age in hell before i hand over so much as a first name to AFACT outside of the ISPs’ proposed scheme or something very similar.

   • Roger
     Posted 28/11/2011 at 11:37 am | Permalink | Reply

     @NuSkope:

     “Personally i like the ISPs’ proposed scheme, It keeps users Rights and details safe, while giving AFACT basically what they want. Additionally they cover all the costs”

     Umm… The the users details were always safe. AFACT never requested the personal details of a subscriber. I think you’re confusing the issue with MRG.

     “hell will freeze over before i spend 1 minute even investigating IP logs unless I’m getting paid for it. and it would be two decades into an Ice Age in hell before i hand over so much as a first name to AFACT outside of the ISPs’ proposed scheme or something very similar.”

     See point above, AFACT have never requested this information. As to acting on the notices being sent (be it in this form or another), if the High Court finds there is no impediment to an ISP acting without remuneration as a condition of being an ISP, then whether hell freezes over or not, they are obliged to act

     • Mick Jones
       Posted 29/11/2011 at 3:39 pm | Permalink | Reply

       AFACT are working hand in hand with all the greedy copyrights holders (greed merchants) and AFACT fully support them in wanting to gain the personal information of ‘pirates’ from ISP’s.

7. Pamela Anderson
   Posted 28/11/2011 at 11:36 am | Permalink | Reply

   “Interpreting it through the lens of misleading summarisation and emotive headlines (like those from Delimiter) – which is an analysis style more appropriate for Fox News than it is for whirlpool – rather than reading what has actually been proposed (and I underscore proposed) is not a frame in which there is any chance of me (or anyone else), ‘winning’ an argument here about it.”

   Quote taken from Simon Hackett himself….Even he thinks your articles are rubbish.

   http://forums.whirlpool.net.au/forum-replies.cfm?t=1821055#r9

   • PeterA
     Posted 28/11/2011 at 3:08 pm | Permalink | Reply

     Hear that Renai? Your opinion is rubbish.

     Oh wait, its Renai’s opinion!

     re: Anti-piracy scheme throws users to the legal wolves I assume?

     Psst. the first word of opinion articles is: “Opinion” but don’t let that stop you quoting people that are misinterpreting and misleading in their statements. (because they didn’t catch the “Opinion” part).

     Also the comment about “more appropriate for Fox News than Whirlpool”, ProTip, delimiter.com.au is not whirlpool.net.au. Just because Whirlpool posted a link to it on the front page doesn’t make it any-more “whirlpool” than all those Australian articles that routinely, completely and *utterly* get their facts wrong (so wrong it has to be on purpose) – and they rarely mark their articles as opinion.

     Don’t let the facts contradict your reality though.

8. Dean
   Posted 28/11/2011 at 4:34 pm | Permalink | Reply

   You’ll note (or maybe you won’t) that Hackett was not actually complaining about the articles. He was referring to people who read the headline only, then get all worked up over nothing. He’s actually telling you to read the whole article, read the actual statement from the ISPs, then form an opinion. Seems like a reasonable position to me.

   Though I’m not sure why you’re even here telling us all this. If you don’t like Delimiter, stop reading.