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  • Blog, Telecommunications - Written by on Tuesday, November 29, 2011 10:37 - 14 Comments

    Bugger off, content industry tells ISPs on piracy plan

    blog Well, that was short-lived. The anti-piracy plan mooted by many of Australia’s ISPs last week has already been reportedly knocked back by several major organisations representing the content industries. The AustralianIT reports today that Australian Content Industry Group spokeswoman Vanessa Hutley had this to say about the plan (for the full article, including comment from Foxtel, click here):

    “ACIG does not think the scheme proposed by the Communications Alliance and its members creates a balanced process and it falls well short of the expectations we had had for an open, balanced and fair solution.”

    Well, she would say that, wouldn’t she. As so many readers had predicted, the content industry does not believe the ISPs’ plan goes far enough. Aaaaaand … we’re back at square one. Or is this the beginning of a beautiful negotiation?

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    1. billy
      Posted 29/11/2011 at 10:42 am | Permalink |

      I don’t think we’re back at square one at all – the highest court in the land is about to hear and then rule (hopefully decisively) on this issue, which should provide authoritative legal guidance on the rights and repsonsibilities of the parties invovled here.

      That ISPs chose to release a “scheme” arrived at by their accountants, lawyers and PR teams (and without the input of rightsholders and customers) a week before th High Court considers these issues was nothing more than a political stunt.

      • Posted 29/11/2011 at 10:49 am | Permalink |

        To my mind, I think it unlikely that the High Court will provide a way forward for the two industries on this matter. Instead, I think it will merely clarify the law.

        But I wholeheartedly agree with your second paragraph :)

      • Posted 29/11/2011 at 10:53 am | Permalink |

        And the fear mongering that the content owners put forward based on unprovable figures showing how much money they’re losing (not gaining should be the correct term anyway), the forcing of people who purchase legitimate DVDs to watch anti-copyright propaganda (they do know I did just pay for this), etc etc, haven’t been political stunts?

        Be serious now, the high court hasn’t handed down a verdict yet, there is nothing wrong with either party putting out proposals to move the situation forward, and have a final agreement within the bounds of the high court ruling.

        • billy
          Posted 29/11/2011 at 11:38 am | Permalink |

          sure – both sides have engaged in lobbying efforts – the ISPs are the ones that have done it most recently, in an act that I think, is disrespectful to the High Court.

          • Posted 29/11/2011 at 5:12 pm | Permalink |

            In what way is it disrespectful to the High Court?

            Remembering that in the original decision of AFACT v iiNet that there was mention of a need by the court (and again in Appeal) for a reasonable and equitable process to enforce copyrights,due process, and privacy by all sides.

            The ISP’s have proposed a plan that is what they think is both equitable and reasonable, and based on acceptable due process standards (natural justice) and they have released it publicly, unlike the RightsHolders or the Government that have kept any proposals secret behind closed doors.

            Remember iiNet won both he originating court action and subsequent appeal. Just because the High Court has deigned to take on a further appeal does not mean that they (both ISP’s and RH’s) should not start the process for enacting suggestions that BOTH courts suggested for reasonable steps.

            For you to think that this disrespects the High Court is absurd.

            Though I agree we are not back at square one as Renai suggested, though I disagree with your notion that it is all up to the High Court decision. In fact with the ISP’s showing they have initiated a discussion and submitted a PUBLIC proposal allows the courts to actually have something to look at and weigh their decision on, unlike the RH’s who keep playing the petulant child act denying any responsibility and thinking the world owes them a favour instead.

            • billy
              Posted 30/11/2011 at 9:46 am | Permalink |

              “In what way is it disrespectful to the High Court? ”

              Because, if we are to assume that ISPs are putting forward this proposal in good faith (a big assumption, but bear with me), the only reason for doing so would be to arrive at an industry code that is recognised under the Copyright Act and that attracts the benefit of the safe harbour scheme (s.116AH) – otherwise, from a legal perspective, the ‘scheme’ is worthless.

              To be recognised under the Copyright Act, industry codes “must be developed through an open voluntary process by a broad consensus of copyright owners and carriage service providers” (r.20B of the Copyright Regulations).

              iiNet released this ‘scheme’ less than a week before appearing before the High Court to argue that it has no responisbility for infringement on its network, without any input/agreement from copyright owners, without openly explaining how much money they make from piracy, without explaining why they throttle bittorrent traffic, without explaining when and why they cache certain infringing materials on their network, without explaing why they will limit their proposal to a miniscule number of notifications, without explaining why they won’t actually take any action against known repeat infringers, without explaing why they didn’t offer such a scheme when rightsholders approached them 6 years ago , and without explaining why they’ve cherry picked some parts of the Federal Court’s rulings thus far and ignored other aspects that don’t suit. They knew perfectly well it wouldn’t fly before they published it.

              So would you say such a scheme has been developed through an “open voluntary process” by both parties? Of course not.

              Which begs the question – for what other purpose would they happen to come up with this plan, coincidentally, just a week before their High Court hearing?

              Because they’re taking the piss and trying to pretend they’ve been anything other than obstructive in recognising the facilitative role they have in relation to online piracy and the position of commercial beneficiary that online file sharing has placed them in.

              Trying to muddy the waters in this way, is a slap in the face for the High Court, in my opinion.

              • Posted 30/11/2011 at 6:56 pm | Permalink |

                It’s worth pointing out that iiNet didn’t release this scheme, a body that iiNet happens to be a member of (Communications Alliance – now being heard as an amici in the High Court, so presumably their input is relevant) did.

              • Posted 30/11/2011 at 7:11 pm | Permalink |

                For you to suggest that the ISP’s might are not be putting this PUBLIC proposal together in good faith shows your bias in this matter straight away. You are making off the cuff assumptions already without knowing the mindset of the contributors. Though Yes I will bear with you and agree that of course it is to allow s116AH to be initiated, though it’s not legally worthless if this does not happen in this first draft/debate since legal in this instance is the gray area that the whole document is all about.

                You state that “iiNet released this ‘scheme’ less than a week before appearing before the High Court” though you seem to be confusing iiNet with the Communication Alliance. Yes iiNet is a part of the Alliance, but organisations like Telstra, Optus et.al would be highly intrigued that you think they are controlled by iiNet. And since the Copyright Alliance is a broad consensus of carriage service providers, r.20B seems to be met on the ISP side don’t you think, and it’s for them, been an open process since they are now PUBLICLY allowing comment from all stakeholders by the mere act of releasing it too the public. Though I admit the RightsHolders have not been a part of this proposal, though there is nothing in the act that says they have to be the ones to BOTH do a proposal from the very start, and I don’t believe either the Government (which has no part in the Act) nor RightsHolders have been very open about anything they propose for legislative measure.

                In fact taking one point form your paragraph about all the wrongful things that the ISP’s have supposedly never answered (why they need to when the onus is not on them is a question for another day) I would love the RightHolders to be open about of how much money they supposedly lose from piracy. Open up the books, open up the standard commercial contracts that they have with Artists, open up about how much money they actually do contribute (directly and indirectly) to the Australian GDP [for those reading it’s in the range of 0.4 to high 0.56% – yes below 1%) open up about how they are legally obliged to protect copyrights equally with no fear nor favour for all their clients that they are agents for.

                For AFACT not to even comment on this proposal, though they seriously commented on the MRG fiasco, and blaming that on being too busy with the High Court appeal means they are either worried about what they might say could be used against them in their pleadings, or they can only handle one major scenario at a time and are therefore strategically, corporately, and managerially,inept. Or both

                When it comes down to it though, the High court doesn’t really care if it is being subliminally disrespected or not. In fact the high court really doesn’t have emotions or an ego in that regard, all it cares about is looking at the laws as stated, the equity of those laws and whether a lower court erred in a matter of law or not under Statute or Constitution law.

                Lets wait to see what the High Court comes up with in regards to the iiNet matter, and at the same time lets see the RightsHolders attempt to enter into a reasonable debate about what proposals are best for the interests of all, not just the 0.5% and that would be respectful to the WHOLE of Australia.

                • toshP300
                  Posted 01/12/2011 at 11:08 am | Permalink |

                  *I would love the RightHolders to be open about of how much money they supposedly lose from piracy.*

                  i would say it’s impossible to quantify exactly. essentially, there are three revenue streams that would be hurt (that i can think of):

                  i/ lost sales of physical media

                  ii/ lower value of FTA broadcasting rights (fewer eyeballs —> lower FTA ad spend —> lower capacity to pay for content rights)

                  iii/ lower value of pay-TV broadcasting rights (fewer subscribers —> higher content cost amortisation per subscriber —> lower margins —> reduce payments for content rights to restore margins)

    2. Adam
      Posted 29/11/2011 at 11:09 am | Permalink |

      It was only a delaying tactic anyway, wasn’t it? They knew the content industry would say no, but they know the content industry will say no to anything that isn’t completely barbaric. At least now they can say the content industry is being difficult or some such.

    3. Nathan
      Posted 29/11/2011 at 11:30 am | Permalink |

      I think content provider interest groups forget although we try to emulate at times and may look and feel like the US, we simply aren’t them.

      • Posted 29/11/2011 at 1:54 pm | Permalink |

        Yes, because, if we were the USA, we might actually get movies and content released here on the same timetable, not 6 months behind. :)

    4. Posted 29/11/2011 at 5:04 pm | Permalink |

      With all due respect to ACIG, what precisely about the proposal are you concerned with? If you would be willing to provide specific shortcoming I’m sure the Alliance would be more than willing to discuss them further.

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