news Citing the “public interest”, the Federal Attorney-General’s Department has censored from documents released under Freedom of Information laws eight pages of notes taken by one of its staff members at a secret industry meeting held in September last year to address the issue of Internet piracy, after initially stating that no minutes were taken of the meeting.

The meeting, held on 23 September, saw major Australian ISPs sit down with the representatives of the film, television and music industries with the aim of discussing a potential industry resolution to the issue of online copyright infringement. A number of the nation’s top telcos, including Telstra and Optusattended the meeting, although the the majority of the organisations who attended were from content industry organisations, including the Asia-Pacific branch of the Motion Picture Association and the Australian Federation Against Copyright Theft.

In October, the Attorney-General’s Department denied a Freedom of Information request for the minutes of the meeting, stating that no such document existed. However, in FoI documents released to the Australian Pirate Party late last year, the Department revealed that eight pages of hand-written notes had in fact been taken at the meeting by one of its officers. However, those eight pages were deleted from a comprehensive swathe of documents released about the meeting as part of the Freedom of Information request.

“The following eight pages, including this one, are handwritten notes taken by an office of the Attorney-General’s Department of the 23 September 2011 meeting,” the FoI document states. “These notes are exempt pursuant to s47C.”

In a statement, the Pirate Party said it failed to understand why the Attorney-General’s Department felt it necessary to initially claim no minutes were taken of the meeting. According to Section 47C of the Act cited by the Department when censoring the notes, access to information must generally be given unless it would be contrary to the public interest. “How on earth is a meeting discussing possible regulatory regimes for file-sharing on the Internet ‘not in the public interest’ to know about?” said Simon Frew, Deputy President of Pirate Party Australia.

“There has been an array of draconian laws passed in other countries. In France they have the notorious HADOPI legislation which disconnects people after three accusations of illicit sharing, and in the United States the PROTECT IP Act (PIPA) and Stop Online Piracy Act (SOPA) – which are currently in their Congress – aim to enforce a censorship regime against sites that could facilitate file-sharing. It is vital that we avoid the introduction of such onerous laws here. All we know is a meeting took place behind closed doors, excluding all consumer representatives and with blacked out ‘notes.’”

“It smells a little fishy to say the least,” he concluded.

In other FoI documents, the Department also revealed that it denied requests by consumer organisations to attend the meeting. “Consumer representatives were not invited to the upcoming meeting as it will be an initial meeting to assess the industry’s progress toward a solution,” the documents stated. “This was not an oversight.”

Since the meeting was held, Australia has had a change of Attorney-General, with former Health Minister Nicola Roxon taking the reins from incumbent Robert McClellend. Roxon has not yet indicated what her stance on online copyright infringement might be.

The September briefing also discussed solutions in other countries, but the FoI documents also revealed that the Attorney-General’s Department hoped to frame the discussion on the day through the lens of the so-called “six strikes” policy to tackling online copyright infringement agreed between the content and ISP industries in the US this year.

Under the deal, major US ISPs — including AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable agreed with the film and music industries to forward copyright infringement notices from content owners to alleged Internet pirates. After five or six of these notices, ISPs have agreed to institute certain punitive measures, including, for example, temporary reductions in Internet speeds, redirections to educational pages and pages to discuss the problem. A copy of the US memorandum of understanding, as well as briefings about how other jurisdictions handle the issue, was circulated in detail to participants before the meeting.

news The Pirate Party of Australia has strongly criticised the former Attorney-General Robert McClelland for ignoring consumers and supporting the content industry instead, in secretive talks held by his department.

In a press release published this week, the Party expressed its dissatisfaction with the lack of consumer involvement in the talks held on 23 September, 2011 between the Attorney-General’s Department and ISPs and content rights holders, including around 25 representatives of the television, film and music industries.

Documents released under the Freedom of Information Act in December have revealed that the talks had deliberately left out consumers from negotiations and deliberations. The Australian Communications and Consumer Action Network (ACANN) and the Internet Society of Australia (ISOC) had been denied permission to attend the meeting. While the documents repeatedly refer to the consumers’ importance, they indicate a continual push for an industry-based solution. In October 2011, the Federal Attorney-General’s Department had claimed that no minutes were taken at the closed-door meeting.

One document states that relevant consumer groups will be consulted once the industry discussions have reached a suitable stage. As per the documents, consumers are not named as key-stakeholders concerning copyright infringement, but the industry is advised to consider consumer interests. “The Government cannot know what ‘consumer interests’ are if relevant consumer groups are consistently turned away” stated Brendan Molloy, Secretary of Pirate Party Australia.

Pointing out the difference between the interests of the industry and those of the consumer, the Party stated that giving only the industry a hearing was not democratic. “We need a ‘consumer-based solution’ to be tabled; but every attempt to engage in discussion has been met with stubborn refusal to acknowledge that consumers and industry aren’t exactly seeing the matter eye-to-eye. It’s a simple case of ‘money talks’” Molloy stressed.

The release referred to another document that states, “The Government, through creating the optimum legislative framework to support business, creative endeavour, and legitimate private activity, also has a role [in solving online copyright infringement].” The Party questioned the definition of “legitimate private activity”.

Mozart Palmer, spokesperson for Pirate Party Australia says the indications are that consumers have no say in how they interact with the images that shape their world. “We are surrounded by images and sounds that influence the way we interact with each other, the way we communicate, but we have few rights over them. Our cultural participation is limited to the depth of our pockets according to the copyright industry’s failing business model” continued Palmer. He emphasised that consumers need more rights over their culture.

Party Treasurer Rodney Serkowski termed the issue as being about how laws are framed and the integrity of Australia’s democratic process. “The government must ensure that the decision making process is inclusive and transparent. All we have seen so far is secrecy, exclusion and opacity” Serkowski claimed.

Recently, the Pirate party had also strongly objected to the proposal by major Australian internet service providers titled “A Scheme to Address Online Copyright Infringement”, terming it a privacy nightmare. The infringement notice system proposed by the scheme would involve sending notices to copyright violators, informing them about breaches of copyright and educating them about the issue. The scheme would further allow user details to be made available to content owners through a subpoena legal process, if the notices were ineffective.

The talks last year were held under the auspices of then-Attorney-General Robert McClelland. However, a cabinet reshuffle late in the year saw McClelland replaced with then-Health Minister Nicola Roxon, who has not yet made her views clear on the issue of online copyright infringement.

news The Federal Government has revealed it denied requests by consumer organisations to attend a secret meeting held between the content and telecommunications industries to address the issue of illegal file sharing through avenues such as BitTorrent.

The meeting, held on 23 September, saw major Australian ISPs sit down with the representatives of the film, television and music industries with the aim of discussing a potential industry resolution to the issue of online copyright infringement. The issue has come to the fore over the past several years due to the high-profile court case on the matter ongoing between iiNet and the Australian Federation Against Copyright Theft.

However, in documents released today under Freedom of Information laws to the Pirate Party Australia, the Federal Attorney-General’s Department, which hosted the meeting, revealed a representative of several public interest groups — the Australian Communications Consumer Action Network (ACCAN) and the Internet Society of Australia (ISOC) had requested to attend the meeting and been denied.

On the 8th of August this year, following media reports that the meeting was to be held, an individual representing both groups requested to participate in the 23 September meeting, the briefing documents revealed. The individual’s name was censored in the FoI documents. The documents are available in full at the website of the former president and current treasurer of the Pirate Party Australia, Rodney Serkowski, who issued the FoI request for the documents. Delimiter has also issued a similar FoI request and was advised this week that many of the same documents would be released this week to the Pirate Party.

“However, [AGD staffer Peter Treyde] advised that the upcoming roundtable will be an initial meeting to gauge the Internet service provider and copyright owner positions and obtain an update on the progress of their discussions to date,” the briefing notes state. “Mr Treyde advised that the Department will consult with relevant consumer groups once industry discussions have reached an appropriate stage.”

“Consumer representatives were not invited to the upcoming meeting as it will be an initial meeting to assess the industry’s progress toward a solution,” the document added. “This was not an oversight.”

The FoI documents did go some way towards revealing the identity of the organisations which attended the September meeting, although the department redacted the names of the individuals who attended.

The majority of the organisations who attended were from content industry organisations, including the Asia-Pacific branch of the Motion Picture Association, the Australian Federation Against Copyright Theft, Foxtel, the Australian Home Entertainment Distributor’s Association, the Media, Entertainment & Arts Alliance, News Limited, Music Industry Piracy Investigations, the Australian Recording Industry Association, the Interactive Gaming and Entertainment Association, the Australian Publishers Association and the Australian Performing Right Association.

On the ISPs’ side, only Telstra, Optus, the Communications Alliance (which represents telcos), the Internet Industry Association and networking vendor Ericsson attended — although Telstra and Optus both sent a number of staff to the meeting. It is not clear whether iiNet attended. All up, about 25 industry representatives attended.

The briefing also discussed solutions in other countries, but the documents also revealed that the Attorney-General’s Department hoped to frame the discussion on the day through the lens of the so-called “six strikes” policy to tackling online copyright infringement agreed between the content and ISP industries in the US this year.

Under the deal, major US ISPs — including AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable agreed with the film and music industries to forward copyright infringement notices from content owners to alleged Internet pirates. After five or six of these notices, ISPs have agreed to institute certain punitive measures, including, for example, temporary reductions in Internet speeds, redirections to educational pages and pages to discuss the problem.

There is speculation in the industry that one potential resolution to the issue of online piracy could be the implementation of a so-called ‘strikes’ system, which would see internet users disconnected after content owners had complained a certain amount of times and provided evidence that a certain user was committing copyright infringement online. Such systems have already been implemented in countries such as New Zealand and France.

So far, the ISP industry has resisted implementing such a system in Australia, although a number of ISPs — such as Exetel, for example — have already voluntarily implemented a system whereby the receipt of a certain number of complaints will eventually lead to a request for a customer to churn to another ISP. AFACT has signalled to ISPs that it wants an “automated processing system” for copyright infringement notices to be distributed to ISP customers.

A copy of the US memorandum of understanding, as well as briefings about how other jurisdictions handle the issue, was circulated in detail to participants before the meeting.

Although the various positions of the different groups espoused at the meeting appeared to have been detailed in the FoI documents but redacted in full by the department. In documents detailing its reasons for doing so, the department noted in general material from the documents had been deleted or not released because of the early stage of the discussions. The Attorney-General’s Department has previously declined a Freedom of Information request for the minutes of the meeting, stating that no minutes of the event exist.

“At this preliminary stage of the process, discussions are taking place, discussions involving various stakeholders with competing interests,” the department wrote. “It is worth noting that these discussions have not yet been completed … The discussions, therefore, are at a very delicate, sensitive and important stage.”

“Disclosure of documents while the negotiations are still in progress would, in my view, prejudice, hamper and impede those negotiations to an unacceptable degree. That would, in my view, be contrary to the interests of good government — which would, in turn, be contrary to the public interest.” Some information was also redacted because it might lead some parties concerned to not disclose information to the Government in future, or to protect individuals for personal reasons.

In general, the information released in the documents was consistent with the statements by former Federal Attorney-General Robert McClelland (the post is now held by Nicola Roxon following a cabinet reshuffle) that the government preferred an industry-based solution to the issue of online copyright infringement. In addition, speaking notes by both McClelland and departmental secretary Roger Wilkins for the event emphasised that consumer groups and interests should be paramount in any such industry solution.

However, the documents also emphasised a desire for copyright infringement issues to be addressed through societal change. The issue is particularly contentious at the moment due to the ongoing court case between iiNet and the Australian Federation Against Copyright Theft, which is slated to hit the High Court, in AFACT’s second appeal following unsuccessful rulings, later this year. AFACT is attempting to hold iiNet responsible for the piracy actions of its users.

“Regardless of the High Court outcome in Roadshow Films Pty Ltd v iiNet Limited, illegal file sharing will continue,” speaking notes prepared for McClelland for the event state. “Practical steps must be taken to educate and deter people from accessing unauthorised content. Any solution should “be educative and aim to change social norms”.

AGD’s FoI document detailing the attendees at the meeting (individual identities have been redacted):

news The Pirate Party Australia has objected strongly to the recent proposal issued by major Australian ISPs entitled “A Scheme to Address Online Copyright Infringement”.

The plan, proposed last week, has been put forward by a coalition of Australia’s major Internet Service Providers (ISPs), including Optus, Telstra, iiNet, Primus and Internode. The group had suggested an 18-month trial of the scheme followed by an independent evaluation. Other major ISPs such as Dodo, TPG and Exetel have refused to back the idea.

The scheme proposes the setting up of an infringement notice system by which violators would be sent notices by ISPs on behalf of content rights holders who have evidence of breach of copyright online. The notices would inform users of alleged copyright violations linked to their account and also educate them about online copyright infringement. After a user had been being served with warning and educational notices, to no avail, the scheme would allow his/her details to be made available to content owners through a subpoena legal process.

However, Brendan Molloy, Pirate Party Secretary described the proposal as a privacy nightmare: “We’re not surprised to see once again a proposal with the purpose of giving up customers’ personal information on the whims of a dying industry, upon nothing more than an accusation.”

Several major organisations speaking on behalf of the content industry have already rejected the proposal shortly after it was put forward. Meanwhile, Molloy has criticised the proposed system as having high potential for abuse and misinformation by the industry. “We’ve seen time and time again studies that have been based entirely on false premises by this industry, and while entirely debunked by the community, they continue to push these reports as fact,” Molloy stated.

Meanwhile, the Pirate Party Australia has appreciated the acknowledgment by the Communications Alliance of the direct connection between the untimely delivery of film and television and the unauthorised access to online content and copyright violation. The group believes that a market failure has resulted in the growth in file sharing.

Still, the Pirate Party has expressed cynicism about the proposal’s intention to bring about long-term change in user behaviour, to match up to what it considered outdated principles of ownership of intellectual property. Mozart Palmer, spokesperson for the Party said, “In the real world, where possessions are tangible, people acknowledge that you can steal something if you can touch it. Internet users have a very different perspective on intellectual property than the rights holders. They see sharing as a cultural activity, not something done maliciously to hurt the content owners.”

As per the proposal, ISPs would not have to issue more than 100 infringement notices every month. Molloy accused ISPs of pandering to the interests of the industry as little as possible to avoid alienating their own customers as the media industry has done. “ISPs realise that they will face losses as their customer base diminishes if they follow the same path,” Molloy claimed.

The Pirate Party also stated that they were still awaiting a response from the Attorney-General’s Department to their FOI request concerning an opaque ‘stakeholders’ meeting held earlier in 2011, with no minutes recorded. The Party has promised to release this information as soon as it receives it.

opinion/analysis
An entirely predictable response from the Pirate Party; of course the party would object to this new proposal on behalf of ISPs. However, it’s interesting to see that — as with the Australian Sex Party — the Pirate Party’s actual policy platforms are not fringe at all in 2011, but fairly mainstream in terms of Australian society.

Palmer is correct when he says many Australians view sharing copyrighted material online as a cultural activity. An example would be the frequent capture of television news snippets, uploading them to YouTube and then broadcasting them to your mates on Facebook. If you see an interesting news snippet and you want others to see it, this is really the only way to do it; the TV networks don’t provide an easy way to do so.

There is a great deal of grey area between the “piracy is stealing” and “BitTorrent everything” points of view, and it is in this grey area that any substantive and long-term policy on copyrighted works in Australia must reside. The Pirate Party’s views are squarely in the middle of this area; not on the lunatic fringe as many politicians would paint them as being.

One further thing which is worthy of consideration: At least the Pirate Party and the Sex Party will comment on the issue of Internet piracy in Australia. Delimiter has invited the Greens and the Coalition to comment on the matter repeatedly this year, to no response. And the Australian Labor Party, which holds the Federal Government, has merely repeatedly emphasised it wants industry to work this one out itself.

Image credit: Capcom/Nintendo (Phoenix Wright: Ace Attorney video game). Opinion/analysis by Renai LeMay

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.

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.

news Senior figures from the Opposition and the Greens have declined to respond to repeated requests for comment over a period of several weeks on recent Federal Government moves to firm up its policy on Internet content piracy, as the future of Australia’s response to the issue continues to be in doubt.

Over the past few months, a number of events have taken place which appear to be signalling the potential for a long-term resolution to the issue of Internet piracy in Australia. For starters, iiNet’s long-running court battle with the Australian Federation Against Copyright Theft has finally hit the High Court and the Federal Department of the Attorney-General has kicked off talks between the ISP industry and content holders on a joint industry approach to the issue.

Amidst these moves, a new player — Movie Rights Group — has arisen and is planning to target thousands of Australians who have allegedly downloaded its clients’ films, using a legal process which both the ISP and content industries appear to approve of, and which the Government has proposed strengthening.

Despite the recent moves, however, the Opposition and the Greens have ignored requests for comment on the issue.

On 25 October Delimiter approached the offices of Shadow Attorney-General George Brandis and Greens Communications Spokesperson Scott Ludlam for a response to the issues — seeking to clarify what the policies of the two organisations are on online copyright infringement.

Ludlam’s office signalled he was the right spokesperson on the matter, but did not respond with a comment, despite repeated requests over several weeks. The office of Senator Brandis noted the approach but has not responded.

The responses are not dissimilar from the Government’s own approach to the issue.

Although the Attorney-General’s Department is holding talks between the content and ISP industries on the matter, the talks are being held behind closed doors, with the department having refrained from giving out any detailed information so far on what has been discussed. In late October, Attorney-General Robert McLelland declined and deflected a number of core questions regarding the Government’s own policy on online copyright infringement.

The only party to have commented publicly on the issue of Internet piracy in any depth is the Australian leg of the Pirate Party, which has been successful electorally in Europe but holds no parliamentary office in Australia. “We have been highly critical of the process by which the Attorney General’s Department has conducted its consultations, which have largely excluded civil society and consumers,” said the party’s then-president, Rodney Serkowski, in mid-October. “The most important stakeholders have not been able to participate.”

The Attorney-General’s Department has previously declined a Freedom of Information request for the minutes of the last known meeting it hosted between the ISP and content industries on 23 September, stating no such document existed. For this reason, a new Freedom of Information request has been filed with the Department, seeking the following documents:

• A list of all attendees at the meeting
• Personal notes of any and all attendees at the meeting from any government agency
• Any and all email correspondence related to the calling and conduct of the meeting
• Any correspondence between the office of the Secretary of the Department and the Office of the Attorney-General discussing the meeting after it was held.

opinion/analysis
It appears that Internet piracy is a taboo issue in Australian politics — a subject which nobody wants to go near for fear of it tainting them. I am surprised that we have been unable to get the office of Scott Ludlam — perhaps the most technologically savvy politician operating in Federal Parliament at the moment — to comment on the issue. However, I’m not surprised that George Brandis won’t comment. I’ve been trying to get Brandis to comment on matters in the Attorney-General’s portfolio for years. He never has so far.

However, it’s high time that Australian politicians realised this issue is simply not going to go away. It shouldn’t be discussed behind closed doors and it needs to be dealt with in both a legislative sense (most likely, through the reform of copyright legislation) and a practical sense, in incentivising the content industry to make their content available online in an acceptable form.

Only then will Australians be able to stop feel like criminals in their own homes for consuming content via Internet piracy that simply is not available via any other reasonable means.

news The Australian Copyright Council has recommended the Federal Government modify copyright legislation to support a “repeat infringer” industry code to terminate the broadband accounts of those who repeatedly infringe copyright online by illegally downloading content such as films through file-sharing platforms like BitTorrent.

The Australian Copyright Council is an organisation which counts among its members Australian publishers across multiple categories — books, newspapers, film, music and more. It was at the organisation’s annual conference earlier this month that Federal Attorney-General Robert McClelland released a discussion paper on the issue of copyright legislation.

The paper controversially contained a prominent section proposing a “streamlined” legal process to aid anti-piracy organisations such as Movie Rights Group and AFACT to target individuals allegedly downloading copyrighted material online. The section was later deleted, with McClelland’s department citing its publication as a mistake, although not before it provoked outrage from digital rights lobby groups.

The Copyright Council today published a paper (available online in PDF form) which detailed its proposals for reform in the area of copyright, put together by a number of legal academics from universities across the country.

Among other arguments, the paper points out that Australia’s Free Trade Agreement with the US requires that service providers such as ISPs would only be freed from liability for copyright infringement occurring on their networks (the so-called ‘Safe Harbour’ approach) on the condition that they implement a “repeat infringer” policy.

Such a policy, the paper argues, “providers for termination in appropriate circumstances of the accounts of repeat infringers”. “In Australia, there has been an inability of carriage service providers who are currently eligible for the [Safe Harbour provisions] to agree upon a repeat infringer policy with copyright owners within an industry code,” it continues.

The Copyright Council noted that any such code must be developed through an “open, voluntary process by a broad consensus of copyright owners and carriage service providers” and be registered by the Australian Communications and Media Authority, under processes specified in the Telecommunications Act (1997).

The paper agrees with the Federal Government that the Safe Harbour provisions should be extended (McLelland proposed this in his speech earlier this month), but argued that any organisation which wishes to rely on those provisions under the law, should be required to implement a repeat infringer policy as a condition of their use of the provisions.

“The precise terms of those standards – perhaps set out in regulations to the Copyright Act –would be a matter for public law input from interested circles,” wrote the Copyright Council’s expert panel. It noted that in the full Federal Court judgement in the iiNet versus AFACT case, Justice Emmett had acknowledged that account termination might amount to “a reasonable step” by ISPs to as to avoid liability for authorising the online activities of customers.

Currently, the development of an industry code to deal with piracy is in the works — with the Attorney-General’s Department holding talks between ISPs and the content industry on the matter. However, the talks are being held between closed doors with no involvement from consumer representatives on the matter, and few details of the process have made it into the public eye.

Similar ‘strikes’ termination policies have been implemented in other countries such as France and New Zealand, with mixed results.

opinion/analysis
Contained in the Australian Copyright Council’s paper is a sharp reminder of how many aspects of Australia’s legal community (including governments and politicians) views the issue of online copyright infringement: As a legal nicety to be smoothed over.

If you believed the viewpoint put by the Council, the issue of Internet piracy is simply one of bringing Australian law into harmonisation with international standards, as applied through the Australia/US Free Trade Agreement and so on. If Australian ISPs want the benefits of Safe Harbour provisions, the organisation and its panel of independent experts argues, those ISPs should also sign up for a process which would see them disconnect customers if they pirate content one too many times.

However, this legal argument is not only a false dichotomy; it bears no relation to how things operate in the real world. In practice, there is actually no relation between the need for comprehensive Safe Harbour provisions and the content industry’s desire to disconnect Internet users who pirate their content. The only reason these two issues are linked is because the US Government — whose country has the world’s biggest content industry — linked them in the Free Trade Agreement.

The US Government and its stakeholders has an obvious self-interest in doing so. It wants to help preserve the power of its content industries.

But the fact remains that disconnecting people from the Internet for pirating content is not the answer to the issue. Doing so raises a whole heap of other issues. In 2011, in Western democracies, to disconnect someone’s Internet connection is to prevent them from accessing modern media platforms. It will block them from participating in democracy. It will restrict their access to many fundamental services such as Internet banking, email, online lodgement of government information such as their annual tax return, and much, much more.

In an NBN world … it will even restrict their access to emergency services telephone calls.

The Internet is as fundamental to Australian society in 2011 as a public footpath or the right to receive paper mail at your home address. Taking the entirety of it away because someone allegedly — and, I stress, allegedly — infringes a powerful organisation’s copyright — is not the answer.

This article is by Mark Gregory, a senior lecturer in electrical and computer engineering at RMIT University. It originally appeared on The Conversation.

opinion Last week, the English High Court ordered British Telecom (BT) to block access to a members-only website that offers links to pirated films. NewzBin2, the site in question, offers links to pirated films on what’s been described as a “grand scale”.

The ruling – which gives BT just 14 days to act – follows legal action by the Motion Picture Association (MPA) earlier this year. It’s the first copyright infringement case of its kind, legally requiring an internet service provider (ISPs) to deal with the thorny issue of illegal downloads.

The High Court outcome is already being hailed as a major win for movie studio bosses in their ongoing copyright protection battles. Chris Marchich, managing director of the Motion Picture Association in Europe stated: “Securing the intervention of the ISPs was the only way to put the commercial pirates out of reach for the majority of consumers. This move means we can invest more in our own digital offerings delivering higher quality and more variety of products to the consumer.”

BT, which has for some years employed an internet filtering system called Cleanfeed to block access to child pornography, welcomed the High Court outcome. That same system – created in 2003 and live since June 2004 – will now be used to filter NewzBin2.

A spokesperson for BT said it was “helpful to have the order now and the clarity that it brings”.

The ruling may also gives the company an avenue for dealing with an anticipated backlash from rights groups and groups sponsoring freedom online: BT, the company can rightly claim, has been forced to implement filtering, and has no choice in the matter. The MPA has already stated it will likely request other ISPs to block NewzBin2. With or without that, the judgement is likely to have an impact elsewhere in the world, including Australia.

In 2008, the Australian Federation Against Copyright Theft (AFACT) took action against iiNet – a prominent ISP – claiming that iiNet had allowed its users to illegally download copyrighted movies. The Australian Federal Court ruled in February this year that iiNet did not authorise the acts of infringement that occurred on its internet service.

The Australian High Court granted AFACT special leave to appeal the Full Court of the Federal Court in August and it’s likely the matter will return to the High Court later this year. It’s perfectly possible the Australian High Court will take notice of the latest international developments relating to this matter.

In the US, the six largest ISPs have agreed to a voluntary “six strikes” system of copyright notices and mitigation measures, including offender download speed reductions, mandatory copyright education and an appeals process. In New Zealand, a copyright protection system has been in place since 1998, which includes warnings, detection and enforcement notices that ultimately may lead to offenders being fined up to NZ$15,000.

In the UK a similar system was announced last year – it includes detection, infringement notices, a frequent offender register and an appeals body. The English High Court has effectively added to the copyright protection available to movie studios by requiring ISPs to block access to identified websites that permit customers to download copyright material.

Internet filters were introduced in Australia this year by major ISPs including Telstra, Optus and several smaller ISPs. The providers announced they would voluntarily block more than 500 websites. This step has drawn criticism from groups such as Electronic Frontiers Australia and other groups supporting online freedom and no censorship of the internet.

Should we be worried or relieved? That comes down to opinion and personal choice. It’s only a matter of time before the internet is fully regulated in Australia. The English High Court decision brings this reality one step closer.

This article was originally published at The Conversation. Read the original article.

news National broadband provider Exetel has signalled it may modify its core business systems to make it more difficult for anti-piracy organisations such as Movie Rights Group to target its customers for allegedly illegally downloading content through platforms like BitTorrent.

Several weeks ago, it was revealed that Movie Rights Group — a new company — 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 are plans to broaden the company’s efforts to other films.

Unlike the other major Australian organisation representing the film industry, the Australian Federation Against Copyright Theft, Movie Rights Group is taking a different approach to piracy. Instead of legally targeting ISPs for the actions of their users, it will merely seek to subpoena customer information from the ISPs and contact those who had allegedly infringed its copyright directly, seeking to settle the matter out of court or through legal action.

The Federal Government has since proposed to streamline the legal subpoena process.

However, in a blog post published yesterday, Exetel chief executive John Linton noted his company may implement workarounds to its systems which would make it difficult for such a legal process to be possible.

“The appearance of scum like the Movie Group [has] forced Exetel to have to consider the base ways we operate the core systems of our business, simply because we must now consider which is the greater of the evils our current society has forced us to confront,” Linton wrote.

“In this case, it is do we go out of our way to protect those of our customers who knowingly and willfully steal other people’s property or do we allow them to be exposed to even scummier elements of our society … who might be able, amazingly and disappointingly, to use the Australian court system to allow them to be blackmailed?”

Linton said it was “a tough decision” for his business to make — and one that would likely cost it over $200,000 if it did implement systems to make Movie Rights Group’s legal process difficult to follow — which Linton noted Exetel “almost certainly” would.

“So by the end of this week copyright theft by some percentage of our customers will cost Exetel something over $200,000 to ensure blackmailing scum can’t target our law-breaking customers,” the executive added.

It remains unclear just how Exetel plans to get around the legal process being used by Movie Rights Group. The process relies on the company producing a significant body of evidence that would allow a court to ascertain that content was being illegally downloaded to or uploaded from an IP address belonging to one of Exetel’s customers. The court would then, under the process, issue an order that Exetel identify that customer.

One way which Exetel may be able to avoid identifying its customers to Movie Rights Group is to avoid keeping records of which customers were using a certain IP address at a certain time — or even to regularly change the IP addresses being used by its customers. By distancing itself from that level of information, the organisation may be able to argue in court that it doesn’t hold the information which Movie Rights Group is seeking.

For his own part, Linton made it clear that he doesn’t approve of either anti-piracy “scum” like Movie Rights Group or customers who illegally downloaded content. “Personally, I was brought up to respect other people’s ownership of property and have lived my life to date on that basis,” he wrote. “Clearly my parents and educators belong to a past era … in a society where lying exceeds truth by an overwhelming margin it is a matter of indifference that base ethics, let alone common courtesy, is progressively ever more absent from social interaction.”

Exetel has examined the FetchTV offering for Internet video which is being promoted by Optus, iiNet, Internode and Adam Internet, Linton noted, but he didn’t believe it would represent a substantial alternative to on-demand video systems available internationally but not in Australia, such as Netflix.

opinion/analysis
It’s a funny world. John Linton, who broadly detests those who use his company’s to infringe copyright, is nonetheless prepared to put up a fight against organisations which would seek to target his customers. iiNet, on the other hand, which is already fighting the movie studios in court, has already rolled over and is supporting the legal process being used by Movie Rights Group.

And yet, somehow I’m not surprised by Linton’s approach.

The executive is cut from the old school of business owners. He resents anyone who attempts to make his business life harder for him, and he’s not going to just simply let himself or his customers be railroaded to serve someone else’s interests. In fact, if it wasn’t for Linton’s initial blog post on Movie Rights Group, the issue wouldn’t even be in the public limelight to start with.

So I raise my hat to the plain-spoken executive. So far, he’s the only ISP executive in Australia to publicly flag plans to stand up for the rights of his customers and protect his own company’s data. It’s an approach that clearly customers want, at least to some extent, from their ISPS.

Furthermore, if Australia’s other ISPs would take a similar approach, it might force the content owners to provide legitimate options for getting film and TV content into Australian homes over the Internet. God knows they’ve done a pretty poor job of it so far.

Image credit: Asif Akbar, royalty free