news Digital rights group Electronic Frontiers Australia has indicated there are both positive and negative aspects to a plan unveiled last week by the ISP industry to deal with Internet piracy.

The proposal 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.

The principal organisation representing the content industry in Australia, the Australian Federation Against Copyright Theft, has declined to comment on the proposal, being focused on its upcoming High Court legal action against ISP iiNet on the issue of online copyright infringement.

In a comment emailed after the ISPs’ discussion paper on the scheme was published, EFA chair David Cake firstly noted that the paper as honest in “representing this scheme as a response to rights holder lobbying”. Because of this, he said, the proposal had “no real value to consumers”, and limited value to ISPs as a means to demonstrate responsiveness to such lobbying.
“So it is hard to be positive about this scheme,” Cake said.

However, he added that the ISPs’ scheme proposed last week was “significantly less problematic” than similar initiatives which had been proposed by the content industry, and the EFA looked forward to consultation on the proposal.

The EFA strongly agreed with the Communications Alliance (which has acted as a focus for ISPs in developing the scheme) that any anti-piracy scheme must protect consumer rights to privacy, “to the full protection provided by the Australian legal system”, and the right to access the Internet. Notably, the scheme does not propose to terminate users’ Internet accounts, as some other jurisdictions have done internationally.

The EFA, Cake added, agreed that the costs of rights enforcement mechanisms should be borne by the content industry — as they were seeking to commercially exploit those rights — and it also agreed with the scheme’s focus on independent oversight.

Such independent oversight and an appeals process — described in the paper in one form as a panel to oversee much of the workings of the scheme — would, however, need consumer or civil society representatives, Cake wrote, with the model proposed by the ISPs being flawed because it lacked such representation.

The EFA, he added, also looked forward to discussion of funding models for the ISPs’ scheme.

“The funding model proposed by the Communications Alliance assumes that AFACT estimates of lost income represent income that is genuinely obtainable, in effect assuming that those who downloaded material for free in violation of copyright would be willing to pay the market price, which is not always true. It will be interesting to see if rights holders are willing to accept AFACT estimates when it is used to determine their funding contribution.

In a separate statement, EFA secretary Kimberley Heitman agreed that the proposal was “interesting” in that it attempted to change user behaviour through education, and that the EFA agreed with many of the principles. He hoped to see comment from peak consumer groups in submissions to the Communications Alliance on the proposal.

However Heitman added there were also concerns in the proposal which would need to be addressed — such as whether the content industry would itself change what he described as its “anti-competitive behaviour”, to help reduce the drivers for users to infringe copyright, whether the appeals process would be easy and cheap for end users, and whether the scheme would discourage the content industry from litigation.

news Digital rights groups Electronic Frontiers Australia and the Pirate Party Australia have taken a dim view of a film industry plan to threaten thousands of Australians with file sharing lawsuits, respectively labelling the effort as risking disproportionate punishment to users and as “extortion” carried out by “copyright trolls”.

On Saturday Delimiter revealed that a new company named Movie Rights Group had approached every major Australian ISP with the aim of securing the details of some 9,000 customers who it alleged had illegally download the film ‘Kill the Irishman’. The company plans to write to the customers offering them the opportunity to settle the matter out of court – or, it is believed, it would take legal action. Movie Rights Group also plans to seek the details of individuals who had downloaded other films, as part of an ongoing effort.

In an emailed response, EFA board member Kimberley Heitman said the organisation was “concerned” that a content owner was pursuing individuals through the courts, warning similar prosecutions overseas had resulted in “huge costs and disproportionate punishment for those convicted of non-commercial copyright infringement”.

“Repeated incidence of mistaken identity, especially over shared IP address, have compounded other injustices associated with the full force of Federal law being applied in domestic circumstances,” added Heitman. He noted resolving norms of copyright law enforcement in the digital age was “more properly the subject for decisions by Parliament than the courts”.

Pirate Party Australia secretary Rodney Serkowski said his organisation was also concerned about the issue.

“This is just another manifestation of the structural imbalance of current copyright laws, and how they are being misappropriated in order to shakedown an entire generation sharing culture, information and knowledge. It’s complete madness,” Serkowski said. “These sorts of predatory lawsuits are completely unwelcome in Australia. The tactic of pressuring individuals to settle allegations of copyright infringement out of court, as we have seen in the UK and US, can only be described as extortion.”

Pirate Party acting secrtary Brendan Molloy said organisations who engaged in legal action against fans of their content should question whether their allegiance was to art, or just “fat profits”; pointing out that it was near impossible to find a musician who had not downloaded, burned or taped music themselves. “Suing fans for the same would be hypocrisy at the highest level,” he said.

Fellow acting secretary Simon Frew said so-called “copyright trolls” had been operating in the US and Europe for the past few years, but this was the first Australia had seen of the approach. He added that content owners in the US had actually backed away from directly suing those downloading their content after a “serious consumer backlash”. “Australia has a less litigious culture than the US and would be likely to provoke an even fiercer response from the victims of these shakedowns,” said Frew.

Movie Rights Group said in a statement that it was not its intention or role to pass comment on the views espoused by either the EFA or the Pirate Party Australia.

The online copyright infringement issue has come to the fore over the past few years due to the ongoing court case between ISP iiNet and the Australian Federation Against Copyright Theft. Movie Rights Group maintains no links with AFACT, but the two are engaged in similar activities in speaking to Australian ISPs about online copyright infringement.

It is believed that Move Rights Group’s approach to ISPs is deeply informed by the initial judgements in iiNet’s fight against AFACT. Although iiNet successfully defended the trial and its appeal, a number of commenters believed the judgement did open the door for the film industry to achieve more success through approaching ISPs with a modified approach. For example, industry sources said Movie Rights Group will carefully target those it sends letters to — excluding public locations such as schools and libraries from its efforts — and even offer to compensate ISPs for the time it will take them to retrieve user details.

Digital rights lobby group Electronic Frontiers Australia has panned the efficacy of the Internet Industry Association’s planned industry-wide child pornography filter, describing it as “security theatre” that wouldn’t actually make much difference to the ability of police to enforce the law.

The scheme — first outlined in detail yesterday — is expected to see most of Australia’s major ISPs voluntarily block a list of sites containing child pornography compiled by international policing agency Interpol, with the assistance of the Australian Federal Police. The legal instrument for the scheme to go ahead is section 313 of Australia’s Telecommunications Act, which allows law enforcement to make reasonable requests for assistance from ISPs.

It is being seen as the telecommunications sector’s more limited, voluntary alternative to the Federal Government’s much wider mandatory filtering initiative.

In a statement issued today, Electronic Frontiers Foundation spokesperson and board member Stephen Collins said he completely understood why the various organisations behind the move — the IIA, Telstra, Optus and so on — were pushing forward with the plan, as it offered them “the appearance of responsibility”, the capability to block known offensive material and so on. In addition, he noted the IIA’s comments that the filter wouldn’t be able to protect against all exploitation of children.

However, Collins said the proposal didn’t acknowledge the fact that “the overwhelming majority” of child exploitation material — illegal in Australia and most other countries — wasn’t actually traded on the public Internet or over the World Wide Web — but through other online mechanisms such as email, peer to peer technologies or through virtual private networks.

“Appropriate cooperation between IIA and law enforcement authorities is a good thing in the main, especially as it applies to bringing child pornographers and other transnational criminals involved in major crime such as human and drug trafficking to justice,” said Collins.

“However, EFA would rather see the government, the IIA and the AFP publicly acknowledge that these crimes rarely take place over anything resembling the public Internet and that blocking sites represents less than the proverbial drop in the ocean.”

The activist said it would be better to accept that fact and accept that fighting crimes of this nature was better done by well-equipped, well-funded law enforcement authorities trained for the task. “The Australian Federal Police units responsible for this work already do an excellent job and could arguably do better with improved funding, training, assets and personnel,” he said.

“While the the IIA moves have the community’s best interests at heart, it’s disingenuous to call this “practical steps to help make a positive difference”. Because they won’t make any difference of substance. As Bruce Schneier is fond of saying, it’s “security theatre”.

The term “security theatre” was coined by Schneier, a US-based security consultant and writer, who describes it as a security approach intended to provide the feeling of improved security — despite a lack of actual measures that will impact security outcomes in practice.

Image credit: Kitt Walker, Creative Commons

The high-profile chair of Electronic Frontiers Australia has revealed he is set to leave his role for a role advising Greens Senator Richard Di Natale in Federal Parliament.

With regular appearances on national television and in online, radio and print media, Colin Jacobs has been one of the most visible face of the EFA over the past several years. The organisation champions digital rights in Australia and is active in a wide variety of policy fronts, including top-level issues such as the campaign for an R18+ rating for video games as well as Labor’s mandatory Internet filter project.

In this role Jacobs and his colleagues have attracted a significant amount of flack from heavy-hitters such as Communications Minister Stephen Conroy. In March 2010, for example, Conroy accused the EFA, singling out Jacobs and several other members specifically, of ‘deliberately’ misleading the Australian public on the internet filter project.

In a blog post yesterday, Jacobs revealed he had stepped down as EFA chair, later confirming he would join the office of Victorian Greens Senator Richard Di Natale in parliament, working as a senior advisor. Di Natale was elected to the Senate in 2010.

“It’s been a very rewarding experience, and as a result I am even more passionate about the issues than I was when I first joined EFA,” wrote Jacobs. “That’s why I’m pursuing an opportunity to work inside our nation’s Parliament and see just how policy is really made in this country.”

Replacing Jacobs as chair of the EFA will be David Cake, who has spent seven years on the EFA’s board and has recently been leading the group’s international affairs effort, according to Jacobs. According to his LinkedIn profile, Cake is currently a tutor at Curtin University in Perth, as well as the owner of Difference Engineering, a software development and consulting firm focusing on platforms like Mac OS X and Linux. Cake has previously been involved with the Australian Labor Party and was elected vice-chair of the EFA in 2010.

Well-known journalist, tutor and public relations specialist Sarah Stokely will take the vice-chair role. Stokely currently works in communications for the Australian Centre for Social Innovation and has a history in the media, working for PR firm Keep Left PR as well as being Crikey’s web editor and assisting organisations like OpenAustralia and Linux Australia with communications. Stokely has also taught courses at the University of Melbourne.

“Both David and Sarah know the landscape very well and have many fresh ideas to drive the debate, and the organisation, forward,” wrote Jacobs today.

In a wider sense there are other changes afoot at the EFA.

Jacobs wrote that the organisation was currently working on a completely overhauled web presence, a new system for managing members and supports and a better payments system (so that it can stop using online payments platform PayPal). “When we relaunch, we want a new focus on providing useful and engaging information in the form of issue backgrounders and position papers, FAQs and legal explainers,” Jacobs wrote. “The new site and associated tools will let us focus more on providing better content and on education and campaigning.”

Image credit: Colin Jacobs

Electronic Frontiers Australia has delivered a virtual slap in the face to the Australian Federation Against Copyright Theft, picking a string of holes in research released yesterday by the group which suggested internet piracy was costing Australia’s economy $1.37 billion annually.

During a press conference held on the set of Stephen Elliot’s new comedy, A Few Best Men, at Fox Studios Australia yesterday, AFACT — which represents a number of movie and television studios — released the results of a study conducted on its behalf by IPSOS and Oxford Enconomics. The study (available online as a PDF) said practices related to movie piracy – such as illegal downloading and streaming – caused a loss in revenue of $1.37 billion and of about 6,100 jobs in the 12 months up to July 2010.

However, in an article posted online late last night, Electronic Frontiers Australia board member and lawyer Kim Heitman demolished the research bit by bit, claiming that content owners were “well known for offering up gargantuan figures that don’t hold up under real scrutiny”.

For starters, he said, the report’s assumption that 45 percent of downloads equalled lost sales was “unproven”. In fact, the movie industry was currently making record profits — and although downloads would have an effect, this might actually be offset by the advertising effect on future releases. Some movies that were downloaded may not have even been available to view or buy in Australia, Heitman added, calculated flow-on effects to other industries were “wholly speculative”.

Bigger issues were also at stake, according to the lawyer.

“Peer to peer file sharing is merely the latest in a sequence of technologies since the 19th century which have been claimed to be the ruin of the creative arts,” said Heitman “… the copyright owners said the same thing about copies of sheet music, tape recorders, every iteration of personal recording system and indeed public radio.”

“Change is consumer-driven, and it’s futile for the industry to try to hold fast to a business model and methods of content distribution which are dying with or without fierce law enforcement of copyrights.”

Heitman said the EFA presumed that the release of the report was the precursor to “a renewed campaign” for tougher penalties against file sharing in Australia — such as a mandatory “three strikes” scheme. However, he said, the better path lay elsewhere.

“We urge the movie industry to cease waging war on its best customers, and instead focus on providing a more compelling offering to the public,” he wrote. “The best way to ensure future profitability is to make quality entertainment available in an easy-to-use form, free from cumbersome rights-restricting controls, and at a reasonable price.”

EFA chair Colin Jacobs agreed.

“The industry has a habit of crying wolf with these sorts of numbers, trying to drum up support for tougher laws,” he said in a separate statement. “But there are many factors they don’t take into account. Treating downloads as lost economic activity is flawed, and downloaders are actually some of the entertainment industry’s best customers. The study also ignores the effects to the wider economy of money being spent elsewhere at Australian-owned businesses.”

Jacobs too, said it was time for content owners to provide a better alternative.

“Instead of waging war against their customers – and trying to get government help to do so – the movie industry should focus on improving its own offering, and give customers a better alternative to the peer-to-peer networks,” said Jacobs. “History shows that customers are happy to pay a fair price for a good product and a good service.”

Image credit: Asif Akbar, royalty free

This article is by Colin Jacobs, the chair of Electronic Frontiers Australia. It first appeared on the EFA’s site and is licensed under Creative Commons.

opinion The Internet freedom business is doing a roaring trade these days. Things started picking up early last year with Hillary Clinton’s landmark speech, “Remarks on Internet Freedom,” which equated an open Internet with human rights and condemned state-sponsored censorship of the net.

Then came the revelations by Wikileaks, starting with the “Collateral Murder” video and escalating to the current batch of diplomatic cables. These leaks severely tested the commitment of governments around the world to the principles of free speech, but have provided an unprecedented lesson in the power of the net and journalism to act in the public interest. The people of the world have taken the lesson to heart.

The protests sweeping the Middle East have highlighted the importance of an open Internet even more starkly. For better or worse, revolution in the 21st century almost by definition includes Twitter, Facebook and the rest of the Internet’s tools. They have proven more effective than a container-load of AK-47s could ever be, because they allow and promote an undeniable expression of the will of the people that robs the violence of repression of any legitimacy.

It’s an exciting time for citizens everywhere. We are witnessing, and often participating in, movements that would have been impossible only a few years ago.

Amongst all of this our own government’s response has been tepid, confused and contradictory. The response to Clinton’s speech, as we have noted before, was cringeworthy in its brazen twisting of her words to support a pro-censorship agenda. The reaction to the Wikileaks developments should have been a principled stand on free speech and the rights of an Australian citizen, but turned into a posturing witch-hunt.

And today, Senator Conroy was asked about the crisis in Egypt, where a desperate government cut internet access in order to hinder protestors. The minister in response declared his undying love for an Internet free of government control and assured us that such a thing could never happen in Australia.

“… Australia’s a vibrant democracy, where the government doesn’t control the Internet …”

As blogger Michael Wyres notes here, the Minister has tied himself up in knots before, attempting to identify with online freedom of speech while spending most of his time defending the opposite.

Barring a superhuman capacity for doublethink, it’s impossible to reconcile this statement with the Government’s stated policy of Internet censorship. A system that involves a secret, government-controlled blacklist of websites, even well-intentioned, definitely amounts to “government control of the Internet”.

If censoring and blocking isn’t regulating or controlling the Internet, what is? No doubt, the Minister has no intention of censoring the web sites of protestors or anti-government activists, but he can’t escape the fact that he is planning to put just such a tool into the hands of the government that succeeds his.

The double standard does not suit our leaders well. If the government wishes to place Australia on the wrong side of history by going down the path of Internet censorship, then have the courage to say so. Trying to do so while paying lip service to the ideals of free speech that censorship — by definition – contradicts, well, it’s not fooling anybody.

Image credit: Armin Hanisch, royalty free

Call us crazy, but here at Delimiter we’re not normally enamoured of the coverage that Australia’s TV networks give the technology sector. Frankly, they normally don’t understand what they’re talking about — and who can blame them? It’s not their area of expertise. That’s why we’ve come to love the appearances by Electronic Frontiers Australia chair Colin Jacobs on shows like the 7PM Project.

In short, Jacobs’ appearance on such shows normally goes like this:

1. The show explains how some “technology issue” is affecting Australians in a drastic way. National Broadband Network, filter, #Vodafail, take your pick.
2. The hosts look mystified for a while
3. Jacobs shows up and explains the issue in sensible terms and the hosts look comforted by all the rationality
4. Hughesy cracks a joke about Nigel Dews’ eyebrows

On the 7PM Project recently, on VHA’s Vodafone security woes, Jacobs says:

These companies have a legal obligation to protect our data. But that requires time, it requires money, and it requires expertise. And often they don’t quite get around to doing it until something like this happens, it all blows up, and they’ve got a horde of angry customers banging on their door demanding to know what happened to their data.

Good job, Col — we couldn’t have said it better ourselves. You’ve got Delimiter’s vote to be the next sensible technology-focused senator elected to an Australian parliament. Maybe NSW? No doubt they’ve got vacancies coming up.

This post is by Colin Jacobs, the chair of Electronic Frontiers Australia. It first appeared on the EFA’s site and is re-published here with his permission.

opinion This election, online issues finally got the attention they deserve. And the situation is here to stay.

I’m not talking about which party had the most Facebook followers or made the most gaffes on Twitter (Julia Gillard and Family First, respectively). Serious issues around internet governance and our internet future came into play, and by all accounts will continue to be significant as the situation plays out this week.

The first issue that affected the election was Labor’s mandatory internet censorship policy, 3 years old and counting. Throughout that time, I believe the accepted wisdom amongst the scheme’s proponents — the most notable being of course Senator Conroy — was that it would be unpopular with a handful of geeks but would appeal to the wider audience of mums and dads in the electorate.

If this was indeed the strategy, I think it backfired. Although it’s based on mainly anecdotal evidence, I believe many internet users had their political consciousness awoken by this attempt to slap censorship on the country’s net connections. When this issue was important to people, it didn’t just put them slightly off-side, but made them hopping mad, if not lifelong skeptics of the ALP. Over time I have spoken to MPs and parliamentary staffers of all stripes, and I’m pleased to report that many people did indeed contact their elected representatives and let the opinions be known. For some MPs, this amounted to a veritable flood, and the issue was absolutely on their radar.

Unfortunately, we’ll never be able to quantify what this did to Labor’s vote. The fact is that Labor suffered a big swing against them, and it’s worth noting that most of this swing went to the Greens, the most vocal opponents of the filter in Parliament. At the ballot box, we can’t disentangle the filter from other issues such as climate change and refugees that the Greens campaigned on, but I believe the filter played a big role.

The Coalition, of course, decided to oppose the filter themselves, and this didn’t happen until the election campaign was already underway. Once again, from reading the feedback online, there’s some evidence that this gave their campaign a boost amongst Australia’s netizens. The fact that they decided to make an announcement then, rather than wait for the legislation as they had previously indicated, shows that they thought this was the case as well.

So while I wouldn’t want to oversell it, internet users are hardly a minority in Australia, and issues close to their hearts are at getting more attention than ever before.

The other major technological issue of the campaign was of course the National Broadband Network. This was without a doubt the one area where the policies of the two major parties differed the most. At the risk of over-editorialising, it was also one of the few policies with long-term vision and a nation-building agenda. Labor’s policy calls for a huge investment in our broadband infrastructure, and — setting the economic arguments aside — is a clear win for internet users. The Coalition’s policy is much more modest and boils down to wringing the last drops out of the copper network while leaving the market to take care of the rest.

As it happened, both policies got some real scrutiny, culminating in Tony Abbott’s embarrassing 7.30 Report appearance where he begged off discussing the details of broadband by claiming (correctly) that he was no “tech-head”. This is a major development; our leaders are now expected to know the difference between peak and actual speeds, symmetric and asymmetric connections, ADSL2+, DOCSIS 3 and fibre to the home. Telecommunications capability has assumed a place next to, even ahead of, rail and roads as critical infrastructure. This is as it should be.

The NBN is still making itself felt. The regional independents, now ubiquitously dubbed “kingmakers” by the media, have all flagged this as an issue. Nothing reduces the “tyranny of distance” like a fast net connection would, so it’s a crucial issue for regional voters. If the three amigos decide to put Gillard back in the Lodge, our broadband future may have something to do with it.

Incidentally, an example of just how badly the filter has damaged Labor’s credibility with regard to online issues is some of the negative comments we received for praising this broadband policy in contrast to that of the Liberal party. Although this failure to “maintain the rage” against Conroy is temporary and I hope forgivable, the ALP have a long way to go if they ever want to regain the trust of Australian internet users.

I haven’t yet touched on the uses of the net itself, including social media, in the campaign. The major parties focussed as normal on scary TV ads to get their message out, and online spending by the major parties (as best we can ascertain) came in at well under 10 percent. The Greens and minor parties relied much more heavily on drumming up support online, both as a deliberate strategy and due to financial necessity. It doesn’t seem to have done them any harm at all. It’s interesting to ponder what will the next election will look like; will the 30-second TV spot still reign supreme?

With the way things are going, we might not have to wait three years to find out.

Image credit: Believed to be public domain or out of copyright

We think Jacobs acquits himself fairly well. He emphasises the importance of understanding Facebook’s privacy controls and knowing the consequences of putting sensitive material online.