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  • News, Telecommunications - Written by on Wednesday, November 30, 2011 15:29 - 18 Comments

    IIA requests “streamlined” piracy controls from Govt

    news The main organisation representing Australian Internet service providers has strongly backed a Federal Government proposal which would make it easier for anti-piracy organisations to request details of alleged Internet pirates from ISPs; in a move which dovetails with a proposal outlined last week by ISPs to handle piracy online.

    The proposal was published in mid-October in a discussion paper released by the Attorney-General’s Department. The paper acknowledged Federal Court rules currently contained a general discovery procedure which could enable a copyright holder to obtain the details of a potential infringer from an ISP. This is the process which a new company, Movie Rights Group, has proposed in its current action to seek the details of some 9,000 Australians it alleges have illegally downloaded the film Kill the Irishman.

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

    The proposal was, however, quickly deleted from the discussion paper only a few days after it was released, with the Attorney-General’s Department stating its publication had been a mistake; the remainder of the paper, which focused on so-called safe harbour legal provisions for local providers hosting content, remained.

    Despite the fact that the portion of the paper concerned has been deleted from the discussion paper, however, in its submission to the department published this week, the Internet Industry Association, seen as the main organisation representing ISPs in Australia, backed the proposal.

    “The IIA notes that in [the] first publicly released version of the Issues Paper there was a section headed ‘Streamlining the Process of Seeking ISP Subscriber Details in Copyright Infringement Matters’, which proposed a streamlining of the procedure for copyright rights holders to identify online account holders whose accounts were being used for copyright infringement,” wrote the IIA in its submission.

    “The IIA supports the proposal set out in that section and calls on the Government to proceed with changes to the process as proposed.”

    The IIA is primarily known for representing ISPs such as Internode, Optus, iiNet, Vodafone, Virgin and AAPT, but it also counts a number of other organisations as its members — law firms such as Baker & McKenzie, Norton Rose, Henry Davis York and Clayton Utz, educational institutions such as Curtin University and the Universities of South Australia, Adelaide and the Queensland University of Technology, web firms such as Facebook and Yahoo and networking hardware companies like Ericsson.

    Even user organisations such as the Systems Administrator’s Guild of Australia are members, as well as security companies such as Trend Micro, F-Secure, Sophos and hosting companies such as VentraIP and Rackspace.

    The IIA’s support for the streamlined piracy process echoes support for the initiative earlier flagged by Internet service provider iiNet; which made its thoughts on the scheme clear in mid-October.
    In addition, the support dovetails with a proposal unveiled by a number of Australia’s major ISPs last week — including Telstra, Optus, iiNet, Internode and Primus — for a notification scheme for Internet piracy which would see, as its ultimate end, the provision of user information to content owners through the same style of legal discovery process which the proposal by the Attorney-General’s Department aims to streamline.

    opinion/analysis
    It seems like a number of things are converging in the Internet piracy debate in Australia; and they’re all converging on this legal process which would see ISPs cooperating in providing information about their users to content owners such as film and TV studios. It’s anybody’s guess what the content studios would do with the information once they had it; but experience in the US suggests they will start to file mass lawsuits against individual Australians who they believe are infringing copyright.

    I personally find it offensive that Australian ISPs are pushing to have such a legal discovery process “streamlined” in such a way, without consulting with their customers about the issue.

    If ISPs such as Telstra, Optus, iiNet and Internode really believe that this legal discovery process is a legitimate vehicle to deal with copyright infringement, I’d like to see them ask their customers what they think about the issue. If the Government can hold a consultation process into such a legal process, why can’t ISPs hold a consultation process amongst their users?

    If their customers support such a scheme, then the ISPs should support it too. But if they don’t, then the ISPs should reject it as well. Customers are key stakeholders in the future of ISPs and they should have a right to have their say.

    It also remains true that the legal process which the Government has proposed, and which the ISPs are backing, has not been tested in Australia. When I spoke with Movie Rights Group about the issue, it appeared as if the organisation had had to do research into the legal process to work out whether it could be applicable in Australia as it was in the US. I publicly posed the question to iiNet regulatory chief Steve Dalby last week in Delimiter’s comments about the extent to which the process had been tested, but he didn’t (to my knowledge) substantially reply.

    Let’s shine the light on this process and see what it really entails. Until we do, everyone involved in the issue in Australia has good reason to be skittish about it.

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    18 Comments

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    1. Posted 30/11/2011 at 3:39 pm | Permalink |

      “If the Government can hold a consultation process into such a legal process, why can’t ISPs hold a consultation process amongst their users?”

      I feel that “Why can’t the Government hold a consultation process amongst its citizenry?”, is a far stronger position to take. They are the ones who are going to make the laws, not the ISP’s. If ISP’s are asked for an opinion, they’re going to give one that is best for the business – and sometimes that’s not going to gel with what an individual wants.

      Why not ask why the Government is (seemingly) not interested in consulting consumers on this issue?

      (private citizen )
      Matt

      • Posted 30/11/2011 at 3:40 pm | Permalink |

        I should know better than to have put “twocents” in pointy brackets. Last line should have read (private citizen [twocents]). :P

        • Posted 30/11/2011 at 3:49 pm | Permalink |

          The Government’s process is open; by definition it includes consumers.

          • Justin
            Posted 30/11/2011 at 4:02 pm | Permalink |

            Really though? Holding closed door meetings between ISPs and the entertainment industry isn’t really an open process.

            • Posted 30/11/2011 at 4:07 pm | Permalink |

              True.

              • Posted 01/12/2011 at 9:12 am | Permalink |

                Renai wrote – Let’s shine the light on this process and see what it really entails

                Renai, the costs of running the case for eg. Movie Rights Company to seek the identities of 9000 Kill the Englishman infringers are easy to google and here they are -

                Expert Witness – A Forensic Scientist needs to prove the tracking works accurately and then write an affadavit to reflect this to the court. They then need to appear in court and describe the process in laymans terms to the Judge. Cost is over $300 per hour plus GST and about 3 weeks work = $40000+. There are several expert witnesses with websites to prove this cost.

                Barrister – Since this HAS NOT been done in Australia, it would be logical to use a Queens Counsel, they charge $10000 per day plus GST and there are several days preparation not including court time. Cost could easily be $70000 for preparation and a few extra days in court, should an intervention arise.

                Court Costs – Since this MUST be filed in a Federal Court, that’s (combined setting down fee and court room hire) $5700 for one day and over $11000 in courtroom fees if the motion takes 5 days with an increasing pay scale the more days are used in court. I wonder if Jon Linton would be the peoples superhero and intervene with Movie Rights Company?

                Preparation with Lawyers – you would expect quite a few billable hours from lawyers, maybe $25000 + GST for following through with the filing, but many more billable hours in recovering funds on top, should that be the process the studio wants to take.

                ISP costs – A quick search reveals the average cost for IP information for law enforcement in Australia seems to be less than $20 per IP lookup. If eg. Movie Rights Company could subpoena information for 1/2 of the 9000 Kill the Englishman, that would be 4500 x $20 = $90000

                So for eg. Movie Rights Company to go to court, file and succeed in obtaining the subpoena to then “purchase” the IP information from the ISPs in order to discover who infringed upon their client’s copyright, they have to be prepared to spend $225000.

                ALL of this could be money spent for nothing, as a Judge may say “No, you didn’t convince me of the technology in the tracking, go back and try again”, so the risk is huge financially as well as the effort involved as this is all unproven.

                Does that seem like a fair deal? A studio must part with nearly a quarter of a million dollars to get a list of names and addresses of copyright infringers? How is that fair and how is that NOT expensive and cumbersome, and incredibly risky?

                How would this then apply to a small studio who only had 100 infringers on their copyrighted film? What about a broke artist? Or a piece of music that had 12 infringers only? The court cost doesn’t change, the exert witness cost doesn’t change, the lawyers preparation work doesn’t change. This whole FEDERAL COURT setup means only the big players can find out who infringed on their copyright and leaves anybody without $250,000 floating around in their back pockets without any chance to even find out who infringed their copyright. How is this fair, this is ONLY fair for the big studios.

                Something has to change and hopefully the Govt DOES streamline the process, it needs to be changed and I wonder if the Govt is just waiting for the AFACT case to wind up first?

                Cheers
                Jaime

                • Asmodai
                  Posted 01/12/2011 at 11:24 am | Permalink |

                  Lol, no surprises that an industry shill would come around playing the violins…

                  You turkeys just want to engage in the same spamigation that the RIAA uses in the US..

                  http://en.wikipedia.org/wiki/Spamigation

                  “The RIAA strategy is an example of a new legal phenomenon that I have dubbed “spamigation” – bulk litigation that’s only become practical due to the economies of scale of the computer era. We see spamigation when a firm uses automation to send out thousands of cease and desist letters threatening legal action. We saw it when DirecTV took the customer database for a vendor of smartcard programmers and bulk-litigated almost everybody in it… The RIAA uses systems to gather lists of alleged infringers, and bulk-sues them. It has set a price that seems to be profitable for it, while being low enough that it is not profitable for the accused to mount a defence, as they do not get the economies of scale involved.”

                  Currently the cost in Aus makes this prohibitive, but reduce the cost and strealine the process and all of a sudden mass litigation becomes not only possible, but profitable. Litigation should be used in cases which warrant it, ie. mass reproduction for resale, not for small time personal downloaders.

                  Nevermind the falsely accused who will typically settle rather than contest because of the costs involved and the fact that they do not enjoy the economies of scale big IP owners do…

                  Oh yeah, and the RIAA abandoned the litigation strategy quite some time ago in favour of making the ISP responsible (something AFACT is also trying to do)…

                  http://torrentfreak.com/riaa-stops-lawsuits-but-not-the-threats-081219/

                  and of course an anon IP can always lead to false positives, but mobs like AFACT don’t really care about that…

                  http://torrentfreak.com/atari-cancels-anti-piracy-witch-hunt/

                  My favourite quote:

                  “This is appalling, it breaches a number of fundamental human rights,” he said. “They risk bringing the law into disrepute – just because lawyers can do something it doesn’t mean that they should.”

                • Posted 01/12/2011 at 11:36 am | Permalink |

                  Got something to disclose, Jaime?

                • Brendan
                  Posted 01/12/2011 at 5:03 pm | Permalink |

                  “Does that seem like a fair deal?”

                  Yes. It does.

                  Because it doesn’t seem to be content creators gunning for little Billy and his personal use of a man-child Bieber song (or squeaky-voiced chest-heaving pop-video).

                  It’s the middle men. The financiers and knee-capping goon squads. The limpets and vampires sucking the life out of every sale. They’re the ones driving this. Because they aren’t about to give up their precious protection rackets.

                  We never see the enormous claims go to the people that are apparently hard done by; and we should.

                  The motion picture and recording industry has turned into a facsimile of the illicit drug trade. The people who make the most money seem to be the ones gunning for these streamlined processes to synergise efficiencies in extracting money from the consuming and lining pockets; all the while shafting both the consumer and the performer.

                  It’s obscene, frankly.

                  • Asmodai
                    Posted 02/12/2011 at 2:58 pm | Permalink |

                    Yeah, I doubt he’ll fess up to being an AFACT rep/employee…

                    If you want to read up on how lowering the costs of bulk litigation allow various IP owners to abuse the system against people that they have no certain knowledge that they actually offended, read

                    http://beckermanlegal.com/pdf/?file=/howriaa.htm

                    and prepare to get sick…

                    Particularly:

                    “On the plaintiff’s end, the owners of the underlying copyrights in the musical compositions are not involved in the case; neither are many smaller record companies. ”

                    So the actual people who make the music, or smaller/indie labels gain no benefit from this style of litigation (there goes the bleeding heart violins Jamie…), merely the big publishers who, as usual, are just in it to make money…

                • mentasm
                  Posted 02/12/2011 at 10:32 am | Permalink |

                  ‘Alleged infringers’ that should be Jamie

    2. Justin
      Posted 30/11/2011 at 3:44 pm | Permalink |

      Why the hell are the IIA even commenting on this? The whole point of the current system is to stop frivolous requests. Making it easier for middle men to extort consumers isn’t really the answer now is it?

    3. CMOTDibbler
      Posted 30/11/2011 at 6:33 pm | Permalink |

      I think you nailed this yesterday, Renai. The government and the ISPs just want this issue to go away. This legal discovery process might well do that. If we customers don’t agree, what are we going to do? If all ISPs are doing it, as they will if it’s legislated, then we have no real choice.

      To be honest, if the account holder can’t sort it out after three written warnings then they pretty much deserve the hassle they get. The issue here is the warnings must be delivered to the account holder. This cannot be guaranteed by email. The only way to achieve this is by snail mail with at least the final warning being recorded delivery.

    4. Bob.H
      Posted 30/11/2011 at 6:45 pm | Permalink |

      “I personally find it offensive that Australian ISPs are pushing to have such a legal discovery process “streamlined” in such a way, without consulting with their customers about the issue.”

      I am not only offended but damn right ropeable that this self serving proposal is even seeing the light of day. All this proposal is about is the IP rights groups and the ISPs trying to come to an agreement that will reduce their costs to the very minimum and maximise their profit. They have no regard to the privacy rights of the consumer or the burden of proving that an offence of any sort actually occurred. Nor do they seem to be willing to take the matter before an Australian Court to test the law in Australia.

      Before any agreement is allowed I think that it should be required that a case be taken to the Courts (preferably the High Court) alleging unauthorised downloading of copyright material by a consumer for personal use. We may know what the Court’s opinion is on downloading for profit but we don’t know what the Courts would rule on personal use. We could then see exactly what the current situation with the law is in Australia. I really don’t give a rats about what happens in the good ole USA because it doesn’t apply here. Australia is ruled by Australian law and until our Courts have made a ruling we don’t know what their interpretation is going to be.

      • Ralph
        Posted 30/11/2011 at 8:47 pm | Permalink |

        Agreed. It’s an interesting point. The distinction between downloading (only) for personal use, sharing for personal use (eg torrents) and mass scale selling/uploading for profit/notoriety.

        What would the fines/settlements look like in Australia? Would it depend on how much you actually upload, or just that you upload at all? Does the copyright law in libraries (10%) apply? [If not for profit, I would hope it'd just be the RRP of the product..]

        It would seem strange that the government really want to make extortion (c’mon, you know it’ll happen) targets of their citizens.

        A significant problem I have is the “he says, she says” nature of the accusation. How would you prove that you didn’t do it? The one nice thing I would say about the isp proposal is it requires strict, objective scrutiny of the accuser’s process.

        Can they just note down your ip, or do they actually have to download from you as well? (ie what would happen if you get a new ip address is still registered on the trackers for what the last person was doing?)

    5. Chris
      Posted 30/11/2011 at 8:07 pm | Permalink |

      Yes yes yes, its always the same debate and accusations. Accusing a downloader of “stealing” a movie and costing the movie companies money. Well its not stealing its copying, you are not losing money because I would never have bought the rubbish movie in question anyway. The movies I have pirated and really enjoyed they deserved to be bought legitimately afterwards and i did so. If the ISP’s are really serious about cracking down on so called criminals commiting piracy then surely they realize that the majority of their customers on very large data plans will no longer have need for such large data plans and get a simple low data low cost plan which will lose the ISP’s money. Why does our Government try and sell its own citizens up the river to please the U.S.? We were there with them for many wars that had nothing to do with us and I’m sure we will be in the next 10 wars that have nothing to do with us but why get all petty about some data flowing over a copper wire that hurts no-one?

    6. 1984
      Posted 01/12/2011 at 9:35 am | Permalink |

      i don’t care.

      i’ll just continue to use alternate networks to trade in copyrighted material. Oh shock horror P2P will no longer work.To paraphrase Princess Leia; The more you tighten your grip, AFACT, the more users will slip through your fingers.

      All of this is just window dressing. It won’t stop anyone but the most laziness of ‘pirates’.

      As Lenai notes the ISP and Gov just want the issue to go away.

    7. Blake
      Posted 01/12/2011 at 10:23 am | Permalink |

      Clearly the problem isn’t piracy, its privacy.




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