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

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

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

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

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

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

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

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

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

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

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

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

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

Image credit: Jamie Woods, royalty free

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 The Federal Attorney-General’s Department has declined a Freedom of Information request for the minutes of a recent meeting behind closed doors between ISPs and the entertainment industry over illegal online file sharing through avenues such as BitTorrent, stating that no minutes of the event exist.

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.

According to The Australian newspaper, a number of the nation’s top telcos, including Telstra, Optus, iiNet and so on were invited to the meeting, although the chief executives of Telstra and Optus met separately with the departmental secretary on the matter. Industry associations also attended, and content owners were represented by organisations like the Australian Federation Against Copyright Theft and the Australian Content Industry Group.

Under Freedom of Information laws, Delimiter had requested a copy of the minutes of the meeting, but in a letter responding to the request last week, the department’s legal officer for FoI and privacy Thuy Van Nguyen responded declining the request.

“This letter is to advise you that this department does not hold documents of the type you are requesting,” Van Nguyen wrote. “I am obliged, therefore, to refuse your request under section 24A of the [Freedom of Information] Act. That provision allows an agency to refuse a request if all reasonable steps have been taken to locate the documents sought and it is satisfied that the documents either do not exist or cannot be found.”

Delimiter intends to refine the Freedom of Information request further with the aim of seeking other documentation which may refer to the meeting.

In statements issued over the weekend, digital rights groups Electronic Frontiers Australia and the Pirate Party Australia have criticised the closed door meetings. None of the parties present at the meeting – the ISP industry, content industry or the government – have so far disclosed precisely what was discussed, although speculation has focused on the possibility of a ‘three strikes’ law being introduced in Australia to disconnect file sharers after a certain number of offences.

Such a system has been implemented in other countries such as France and New Zealand.

“EFA is concerned that the current discussions between more recognised organisations representing rights holders, ISPs and Government agencies does not have transparency of process or adequate public consultation,” said EFA board member Kimberley Heitman.

“The three-strikes law is still a dangerous threat to freedom of participation on the Internet, and needs serious public debate and checks against home users suffering summary loss of Internet rights. Proposals to date have been biased towards automation of enforcement and conviction, and callous to the consequences of the penalties.”

The news comes as a new company, Movie Rights Group, has started approaching major Australian ISPs with the aim of securing the details of thousands of customers who it alleged had downloaded films belonging to its clients, movie studios and distributors. 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.

“With a secretive meeting between AFACT and its assorted fronts, the Government and ISPs happening last Friday, this will be the sort of thing Australians will be seeing much more often, as the government legislates a harsher environment for file-sharers,” said Pirate Party Australia acting secretary Simon Frew. “The studios, record labels and publishing companies aren’t interested in
engaging with their fans and prefer secretive meetings in order to work out how to best protect their monopolies over our culture.”

“EFA would urge the Government to consult more widely with the public in updating the laws so that home users do not need to fear such victimisation,” wrote Heitman.

Last week, the Attorney-General’s Department said that all parties at the meeting had acknowledged that “consumer interests are very important and should be protected”.

“The industry will continue to engage with consumer groups in its discussions and the Department will seek to ensure that consumer protections are integrated into any agreement,” the department stated. “Representatives of Internet Service Providers and copyright owners have agreed to continue talks and to meet with the Department again in a few months. As this is the first meeting , it is envisaged that consumer representatives will be invited to future discussions.”

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.

news Thought AFACT was the only game in town when it came to enforcing copyright in Australia? Think again. Another front has opened up in content holders’ war on file sharing, with a new and separate firm named ‘Movie Rights Group’ proposing to engage in mass legal action against thousands of individual Australians who have allegedly pirated content in the past 12 months.

The company’s existence first came to light today as a result of a blog post published this week by John Linton, the chief executive of national broadband provider Exetel. Linton noted that US film distributor Lightning Entertainment had contacted his company with a list of 150 IP addresses, seeking the details of the equivalent 150 Exetel customers who had allegedly downloaded the film ‘Kill the Irishman’, which was released this year. Exetel’s 150 were just a fraction of the 9,000-odd Australians which the company claimed had pirated Kill the Irishman, and whom it is pursuing.

Following Linton’s post, Delimiter has confirmed that Lightning is being represented in Australia on the matter by a new company called ‘Movie Rights Group’. It is unclear who precisely is behind the company, but it was registered as a Queensland-headquartered private company in November 2010, with its only known executive so far being its vice president of sales and marketing Gordon Walker.

Speaking in an interview this afternoon, Walker said his company had nothing to do with the other prominent group representing film and TV studios in Australia, the Australian Federation Against Copyright Theft, which is currently engaged in controversial legal action with ISP iiNet in the High Court over copyright infringement issues. Movie Rights Group had not been in contact with AFACT, Walker said.

However, like AFACT, Movie Rights Group has started contacting Australian ISPs in respect to the behaviour of their users.

Walker confirmed the company had contacted all major ISPs in Australia seeking information on users who had allegedly infringed copyright online, with Kill the Irishman being just one of the films which the company was tracking and Lightning being just one of the clients which the company is representing locally. The company’s requests appear to be targeting a large number of Australians, with some 9,000 locals alleged to have downloaded Kill the Irishman alone.

Walker said once the company had received information from the ISPs on which user accounts were connected to the IP addresses who had allegedly infringed his clients’ copyright, Movie Rights Group would be sending letters to those users through its law firm, Brisbane-based Lloyds Solicitors, giving them a choice between various options they could pursue.

The executive wouldn’t say what those options were – although he recommended those who received the letters to seek legal advice. In addition, Movie Rights Group’s web site has a prominent notice informing visitors that one of its chief services is settling lawsuits with infringing users. “We intend enforcing our copyright owners’ rights in Australia through the Federal Magistrates’ Court,” said Walker.

If the company is seeking to settle cases of alleged copyright infringement with Australians out of court, it will be one of the first cases where this approach has been taken in Australia. So far in Australia, most legal action aimed at those who infringe copyright has focused on ISPs such as iiNet who provide the mechanism – Internet access – for it to take place.

However, in the US, for example, the practice is widespread, with the Recording Industry Association of America, for example, launching an early settlement program in 2007 which targeted thousands of users with offers to settle cases of copyright infringement. According to Arstechnica, the average amount being settled was about $3,000 at the time.

Walker wouldn’t answer what his company considered the value of damage an individual Internet pirate who downloaded a film for their own personal use was. However, he pointed out that anyone using the BitTorrent protocol, due to the restrictions of the protocol, was simultaneously downloading content as well as uploading it to other users.

It seems inevitable that if Movie Rights Group is successful in persuading – through the courts or otherwise – Australian ISPs to give up information on their users, that copies of its letters to users will be posted on sites such as broadband forum Whirlpool, fully disclosing the company’s approach. However, Walker said if that publication of what he described as confidential material occurred, that was an issue which Movie Rights Group would have to take up with the individual concerned.

And it does seem likely that at least some ISPs will provide the company with the information it needs to target users.

Although Exetel’s Linton has not yet disclosed what his company’s approach to Movie Rights Group’s approach will be, in his blog post this week, the executive noted that his own company’s lawyer had accepted that it was “almost certainly the case under standard commercial Australian law” that Movie Rights Group could legally subpoena the users’ information it needs. “They will review the cited references but their opinion is that, subject to final validation, if a subpoena is issued then no company, Exetel or any other ISP has any option but to comply with it,” wrote Linton.

“The information we’ll have on the downloading activity is 100 percent cogent and unequivocable evidence,” said Walker, noting Movie Rights Group had conducted extensive legal research before commencing its operations.

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.

The wider problem
A widely held view in Australia is that the poor availability of legal online content locally – compared with countries such as the US – and the delay it takes for the latest television shows and movies to arrive in Australia is a major contributing factor to the nation’s high degrees of online piracy. The Federal Government seeking to arbitrate an agreement between the content and ISP industries over the matter.

Walker said he wasn’t sure whether Kill the Irishman was available through legal online channels in Australia such as Telstra’s T-Box platform, although he noted you could have seen the film in cinemas, and it was available for rent or purchase on DVD. However, the executive defended Movie Rights Group’s approach by stating that the issue of online copyright infringement was one which hadn’t been dealt with well globally by governments.

“Other jurisdictions around the world have attempted to legislate and police illegal downloading. Has it worked? No,” he said. The UK, Walker pointed out, had set up a parliamentary investigation into the area half a decade ago. “They had a series of meetings and more meetings and sub-committees and what have you,” he said. “The outcome of all of those committees and sub-committees was absolutely nothing. Trying to control the Internet is like trying to control the [Japanese] tsunami which hit those poor people.”

For example, Walker said, in the case of Wikileaks, government attempts to force the maverick organisation to take down its content had simply resulted in many mirror sites popping up instantly all over the world to keep the content available. “Everybody knows that the Internet is the ultimate unkillable beast,” he said.

In this context, Movie Rights Group was “a commercial solution” to what had previously been seen as a legislative problem, Walker said. Service providers themselves weren’t the infringing parties — but merely provided the “road” of the Internet, which most people drove on safely, but there were always some who “wanted to drive up the inside land, drive down the breakdown lane and drive at 200Km/hour.”

“You’ve got to have policemen and women in cars,” Walker said. “This is where we see our role.”

And just who is Movie Rights Group? Walker wouldn’t say who was behind the company, but he did note everyone involved was Australian, although it also had operations and legal representation in the US and Europe. The parties behind the group had been in the Internet business for about 16 years, he said, in areas such as hosting and affiliate marketing programs. The copyright infringement program was “a new direction” for those parties, Walker said.

Ultimately, it remains unclear what the reaction from Australian ISPs and end users will be to Movie Rights Group’s activities. The area in which it is operating is a dynamic one, with the iiNet versus AFACT trial still underway and the Federal Government’s Department of the Attorney-General also very active in discussing the issue with the industry.

However, there appears no doubt that some impact will be felt. “If this group launch 9,000 individual lawsuits against Australian Internet users in the not too distant future I think a lot of attitudes to illegal downloading will change … if only by parents,” wrote Exetel’s John Linton this week.

news A document published by Wikileaks appearing to be a US diplomatic cable appears to have revealed much of the previously hidden background behind the iiNet/AFACT court case, including the Motion Picture Association of America’s prime mover role and US Embassy fears the trial could become portrayed as “giant American bullies versus little Aussie battlers”.

The case, which is expected to shortly be escalated to the High Court following a second appeal, has since November 2008 seen a local organisation known as the Australian Federation Against Copyright Theft (AFACT) squaring off against local ISP iiNet, over alleged copyright infringement over file-sharing networks like BitTorrent by iiNet’s customers.

AFACT is known to represent a number of US-based movie studios in the case, including Walt Disney Pictures, for example, as well as industry associations such as the Motion Picture Association of America and local companies such as the Seven Network.

However, this week Wikileaks published what appeared to be a leaked cable sent from the US Embassy in Canberra (under the name of then-US Ambassador Robert McCallum) to a number of US Government diplomatic branches on 30 November 2008, revealing what appeared to be further details of the case. The cable, seen by Delimiter, claims that although the case against iiNet was filed by a number of local and US content owners and distributors, the prime mover behind it was the MPAA, which has been active in copyright enforcement in the US.

The relative governments which have suffered leaks under the Wikileaks case have repeatedly declined to comment on the substance of the cables leaked over the past year, although they are believed to be genuine. AFACT and iiNet have been contacted tonight for a response to the leaked cable.

An executive from the MPAA, the cable claimed, had briefed the US Ambassador on the matter, confirming it was the mover behind the case, with AFACT essentially functioning as a sub-contractor to the MPAA in the matter and the MPAA having no formal presence in Australia. However, the cable claimed that the MPAA would prefer its role not be made public.

“AFACT and MPAA worked hard to get Village Roadshow and the Seven Network to agree to be the public Australian faces on the case to make it clear there are Australian equities at stake, and this isn’t just Hollywood “bullying some poor little Australian ISP,” the cable quoted the US Embassy as writing.

iiNet, the cable claimed, had been targeted because the ISP was “big enough to be important”, as the third-largest ISP in Australia. The MPAA didn’t go after Telstra, the cable claimed, because the telco was “the big guns” and had “the financial resources and demonstrated willingness to fight hard and dirty, in court and out”. In addition, iiNet users had a particularly high copyright violation rate, the cable claimed, and its management had been “consistently unhelpful on copyright infringements”.

Confidence
The cable also claims that the MPAA believed its case against iiNet to be very strong, as the organisation had delivered a significant chunk of evidence to the ISP revealing copyright violations on the part of its users. However, the ISP did “nothing” to address the issue.

Consequently, to prosecute the case, according to the document, AFACT hired “Australia’s top copyright lawyer” from specialist IP/IT law firm Gilbert & Tobin — a lawyer with experience in previous copyright infringement cases in Australia.

And Communications Minister Stephen Conroy was also consulted, according to the document, with the MPAA speaking with the Labor Senator a few months before the case. At the time, Conroy stated that he had “other priorities” such as the National Broadband Network policy. The MPAA, according to the cable, did not see any role for the US Embassy in that context at that time, but wanted to keep it informed of developments.

In addition, according to the cable, the MPAA saw the iiNet case as potentially “not necessarily their final legal move” in Australia with respect to the issue of online copyright infringement. Although the iiNet case has not yet been concluded in the High Court, AFACT has this year begun again reaching out to Australian ISPs to attempt a dialogue on the issue of copyright infringement.

The US Embassy, according to the document, noted that Australia had “very high rates of illegal movie and television show downloads”, in part because of “the sometimes long gaps between their release in the US and their arrival in Australian theaters or on local television”. The Australian legal action could be followed up by similar moves in other Commonwealth countries, according to the cable.

The US Embassy, according to the document, concluded its report on the issue by noting it would watch the case closely — both for its intellectual property rights implications, as well as “to see whether or not the “AFACT vs the local ISP” featured attraction spawns a “giant American bullies vs little Aussie battlers” sequel”.

opinion/analysis
If the details in the cable are correct, and bear in the mind that they represent the US Ambassador’s interpretation of what the cable says he was told by the MPAA, they would certainly be consistent with many of the guesses which observers of the iiNet versus AFACT case have already made.

It seems very likely — with its key role in this area in the US — that it is indeed the MPAA that is the prime mover behind AFACT, and the trial itself, and that Telstra and SingTel-backed Optus were targets too big for the organisation to go after in Australia. Secondly, it is true that AFACT has been relatively confident of its case against iiNet all the way throughout the trial in Australia’s Federal Court — and still remains quite confident going into its High Court appeal.

It remains true, of course, that there are definitely two sides to the iiTrial. iiNet has a very valid point with respect to its right to not be held accountable for the actions of its users — as the builders of a road would not be held responsible for stolen goods shipped on that road. However, AFACT also has a point — under current copyright law it is illegal to simply download movies via BitTorrent, and targeting ISPs like iiNet would appear to be one effective way to attempt to have that law enforced.

However, there is also the court of public opinion — the public which consumes the content which the studios own and companies like the Seven Network distribute in Australia.

I would bet that the publication of this cable will not aid the case of AFACT and the MPAA in wooing that public opinion. As the cable notes, one of the underlying issues beneath copyright infringement in Australia remains the reluctance by some parties to release their content locally at the same time as the US. I suspect that if that issue was resolved, and online distribution centres such as Hulu extended to Australia, much of the online copyright infringement problem would disappear.

iiNet, and other ISPs, are certainly currently attempting to push the film and TV studios down this path with the release of IPTV offerings.

Image credit: Delimiter

The High Court of Australia this morning granted film and television studios the right to appeal against the decision made earlier in the year in the case against Australian ISP iiNet.

The approval means the studios will have the opportunity to argue against the interpretation of the laws concerning copyright infringement by authorisation, rather than the facts of the case made against iiNet.

iiNet CEO Michael Malone said he wasn’t surprised by today’s decision, but called on the industry to come to a “workable” solution to piracy problems. “I know the Internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone said. “We remain committed to developing an industry solution that sees more content readily and cheaply available online as well as a sensible model for dealing with repeated copyright infringement activity.”

A group of 34 parties, comprised of most major Australian and American film studios, took iiNet to court in 2009 after claiming iiNet had “authorised” its users to download pirated movies and television over the Internet. After the original decision of not guilty made in February last year was appealed, the Australian Federal Court ruled in February this year that iiNet was not responsible for the illegal downloading.

However the parties against iiNet decided to attempt to appeal the decision yet again, lodging an application soon after on the 24th March with the High Court of Australia for a special leave to appeal grant.

The grant means that within the next 14 days, a notice of appeal must be filed with the High Court and sent to iiNet, otherwise the leave grant will lapse. iiNet is given the option to cross-appeal up to seven days after receiving the notice from the Studios. A lengthy number of legal procedures which must be undertaken and court sitting times mean it’s unlikely the court hearing will occur before the 25th October.

It could, however, stretch out until early December, with the next available sitting times after the 3rd of November not until the 29th of November. “We will continue to defend our position in these proceedings if necessary. I remain convinced that a genuine industry-wide solution is a better outcome for allconcerned and I’m hopeful it will be developed,” Malone said.

Image credit: Delimiter

Sabiene Heindl might be about to leave her role as the general manager of Music Industry Piracy Investigations and spokesperson for the Australian Content Industry Group for a high-flying career at the National Broadband Network Company, but the anti-piracy campaigner just can’t stop enthusing about content protection.

In an opinion piece published this morning by The Australian, Heindl — who has long led the music industry’s anti-piracy taskforce in Australia — argues that a recent deal signed between US Internet service providers and film, TV and music studios is a positive for everyone. Writes Heindl:

“The significance of the US agreement cannot be overstated. It has proved wrong all those people who thought the content industries and the ISPs could never come to a voluntary agreement in a market as big and as complex as the US … There need not be a winner or loser. Everyone can benefit from this.”

Now Heindl’s got a point. At the end of the day, most consumers basically want a moderately priced and convenient way to access all of the content they want (regardless of where it was created or who owns it), whenever they want, and in a format that will suit them. If ISPs, content owners and platform providers like Apple, Microsoft and Google can work together on a solution to this issue, everyone can win. Content owners can get paid a fair amount for their work, ISPs won’t get sued constantly for traffic passing over their networks, and consumers can consume at their leisure.

However, the content industry hasn’t exactly given Australia’s consumers or ISPs a great deal of confidence recently that negotiation can achieve the right outcomes.

Ongoing lawsuits against major ISPs, threatening legal letters sent to both ISPs and consumers, appeals to the Federal Government to step in, region IP-blocking for services like Hulu, a lack of distribution rights for eBooks and even a failure to launch the same services in Australia as are available overseas … the content industry isn’t exactly coming to the party here.

Partnership takes effort from both sides, people — and right now, Australian consumers and ISPs aren’t feeling the love from big content.

Image credit: Luis Lopez, royalty free

The Australian organisation representing film and TV studios’ anti-piracy efforts has written to at least one local ISP requesting a meeting to discuss implementing an “automated processing system” for copyright infringement notices to be distributed to customers.

The organisation — known as the Australian Federation Against Copyright Theft or AFACT — represents a number of multinational film and TV studios concerned about online piracy of their content through avenues such as peer to peer file sharing service BitTorrent. It is best known for its high-profile legal battle with ISP iiNet over BitTorrent, which is expected to reach the High Court this year.

It is believed that AFACT considers early judgements in the case to have opened the door for it to legally approach Australian ISPs about online copyright infringement, provided it supplied the right level of detail about the alleged offences. In the past few months, a number of ISPs have confirmed the organisation has approached them about the matter.

In one letter to Exetel sent by AFACT yesterday and seen by Delimiter, AFACT requested a meeting with the ISP.

“AFACT is fully aware that Exetel has a Copyright Policy in place and AFACT would welcome the opportunity to meet with Exetel to discuss how AFACT and Exetel can work together to enhance the efficacy of Exetel’s graduated response process,” the letter from AFACT executive director Neil Gane stated. “For example, we could discuss the implementation of a standardised automated processing system that could integrate with your current network.”

Currently, different ISPs take different approaches to the issue of online piracy, with some committing to forward on copyright infringement notices to users, followed by potential disconnection of their service, and others either ignoring the letters or forwarding them to law enforcement authorities.

In its letter to Exetel, AFACT noted that it was also sending the ISP a comprehensive spreadsheet detailing “a sample of up to 100 instances per week” of alleged copyright infringement actions taking place by Exetel customers. The letter stated that a high degree of detail was contained in the spreadsheet — including the date and time of the alleged infringement, the IP address on which it occured, the name and detailed of the file shared online, the name of the AFACT member company holding the copyright and more.

The information was compiled, according to AFACT, by DtecNet Software, which specialises in copyright infringement tracking and also supplied information to AFACT to aid with the iiNet court case.

“In line with our commitment to protect our member companies’ content, AFACT is investigating infringements of copyright in movies and television shows in Australia by customers of Exetel taking place on Exetel’s networks through the use of the BitTorrent “peer-to-peer” protocol (BitTorrent),” AFACT wrote.

Separately, an AFACT spokesperson today said the organisation didn’t comment on “operational matters”, but noted that the full Federal Court had found it was “reasonable and effective” for an ISP to warn its customers not to infringe copyright.

” They also found that that ISPs had other effective steps under customer contracts that they could take to prevent repeat infringements and that that account holders are responsible for the infringing use of their accounts,” the AFACT spokesperson said.

It’s the second time that AFACT has contacted Exetel on the BitTorrent issue this month; the organisation wrote to the ISP expressing similar sentiments earlier this month, setting a time limit of seven days for a response, and noting it would take an unspecified action after that point. On that occasion, Exetel chief executive John Linton’s response to the letter was short and sharp.

In his response to the new letter, Linton CC’d in a number of journalists and Exetel staff late yesterday, and took a similar approach, requesting that Exetel would be “more than happy” to comply with the law if AFACT would point out the applicable legal framework, and would forward alleged copyright infringement notices if AFACT would use what he referred to as the internationally agreed upon email format for sending them.

“The crude and extremely difficult manual format your organization chose to adopt during your previous ‘program’ (and again now) is pointlessly cumbersome and costly; I assume for you as well as any ISP you choose to send your notices to,” Linton wrote.

“While we could, again, go to the expense of taking a highly qualified [senior counsel's] advice (a more competent one than you chose to use in that dog’s breakfast of a law suit you brought against iiNet) about our requirements under the current Federal and NSW laws to do that or any more than we do today, I would think, would result in the same advice as last time – we have the appropriate written advice, on which we are currently relying, that we have no obligations to do more than we currently do all as the law stands today.”

Linton also questioned why AFACT would target it and not larger ISPs.

“As you must know Exetel is a very small company and compared to Telstra, Optus and TPG, we carry a minute percentage the type of traffic you refer to in the first paragraph of your letter,” he wrote. “Why you would choose to threaten us in the ways you have chosen to do when we couldn’t possibly affect your clients in the ways a major carrier does can only be conjectured upon.”

Image credit: Delimiter