Delimiter » iitrial

Senate blocks release of secret piracy docs

Renai LeMay — Fri, 11 May 2012 01:49:06 +0000

news The Federal Government and Opposition have teamed up to block a motion put by the Greens in the Senate which would have forced the Attorney-General’s Department to produce a series of documents regarding its closed-door meetings on Internet piracy in February this year.

On 8 February this year, major Australian ISPs sat down with the representatives of the film, television and music industries and the Federal Attorney-General’s Department, with the aim of discussing a potential industry resolution to the issue of online copyright infringement. The meeting was the fourth such meeting to be held, after a series of other meetings were held late last year under similar circumstances.

However, the Attorney-General’s Department has used a series of complex legal arguments to deny the release of documents associated with the meetings under Freedom of Information laws — redacting, for example, an entire 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department.

Subsequently to the censorship of the FoI request, Greens Senator and Communications Spokesperon Scott Ludlam filed a motion in the Senate in March requesting that the Attorney-General’s Department produce a list of invitees and attendees at the February meeting, notes and minutes arising from the meeting, any documentation issued to attendees and any internal departmental correspondence regarding the meeting — as well as documents relating to future meetings.

However, the motion came to fruition on Wednesday this week, it was blocked overwhelmingly in the Senate, with both the Government and Opposition declining to support it. In the Senate, Ludlam noted for the record that the Greens supported the proposal, while “the rest of the chamber opposed it”. The Coalition did not take the chance to hold the Government accountable on the matter. In the past, Shadow Attorney-General George Brandis and Shadow Communications Minister Malcolm Turnbull have not responded to requests to comment on the issue.

The news is now the third time which attempts to retrieve information regarding the secret piracy talks have failed.

In April, the Federal Attorney-General’s Department conducted an internal review of the decision by its Freedom of Information officers not to release the sensitive documents. At the time, a senior office of the department found that its decision to substantially block the Freedom of Information request was valid.

“I have decided that disclosure of these documents would be contrary to the public interest,” the department’s director of its FOI and Privacy Section, Malcolm Bennett said at the time in one argument made. “My reasons for so concluding are essentially the same as [AGD senior legal officer Jane Purcell]‘s— that is, that the discussions that are taking place are at a delicate and sensitive stage.”

The talks have gained an extra level of potency following a High Court decision in mid-April which found that major ISP iiNet was not responsible for the Internet piracy actions of its users. At the time, the Australian Federation Against Copyright Theft, which represents film and TV studios, said the loss illustrated that the Government needed to step in and take action on the issue of Internet piracy.

In response, Federal Attorney-General Nicola Roxon said the Government would closely examine the case, but added that the closed-door meetings between the content and ISP industries on the matter would continue. Despite this statement, it is believed that no further formal meetings have been held or scheduled by the Attorney-General’s Department on the issue since February.

The Australian newspaper has reported that ISPs have taken a stronger stance against copyright holders in dealing with the Attorney-General’s Department since the High Court decision. However, it also reported that a second set of informal meetings between a smaller group of industry stakeholders had also been held by the Attorney-General’s Department on the issue.

opinion/analysis
I really don’t understand the Opposition. This is a political group which will rail against the Government at every opportunity — on asylum seekers, on the National Broadband Network, on the carbon tax — the negative vitriol is incredible. And yet, when given a concrete chance to hold the Government of the day accountable on an issue of high public interest such as Internet piracy, the Opposition doesn’t take it.

All it would have taken for the Opposition to hold the Government accountable on this issue would have been for it to vote for the Greens’ motion to produce these secret documents. Instead, the Opposition chose to support the Government in keeping information in the public interest from being made public. Incredible.

As for Shadow Attorney-General George Brandis … do your job, George; realise that there has been public interest in this important issue for six months now, that it’s been covered in several national media outlets, and that the Labor Government is both holding secret meetings with industry and trying to stop that information from coming to the public eye. Keeping the Government accountable on this issue serves both the Coalition’s political interests as well as the public interest. Can’t you see your way clear to getting out of bed for this kind of free win?

Turnbull on iiTrial: We need ‘global copyright’

Renai LeMay — Thu, 26 Apr 2012 01:09:08 +0000

news In the wake of iiNet’s victory in its Internet piracy High Court case, Shadow Communications Minister Malcolm Turnbull has called for the content industry to start releasing all of its content globally through on- and offline platforms simultaneously upon launch, in an effort to meet the demands of consumers and make piracy irrelevant.

The High Court last week knocked back a final appeal in the case by a coalition of film and TV studios, represented by the Australian Federation Against Copyright Theft. The studios first took iiNet to court in 2009, claiming iiNet had “authorised” its users to download pirated movies and TV over the Internet. However, the court said today, iiNet had no ability to prevent its customers from infringing copyright, and copyright law was not suited to enforcing the laws of content owners through such platforms.

Subsequently, AFACT said the loss illustrated that Australia’s Government needed to step in and take action on the issue of Internet piracy. The Government has said it will examine the decision, but has a preference for talks on the issue to continue under the auspices of the Federal Attorney-General’s Department.

The Coalition, which is currently expected to win government in the next Federal Election, has not yet released a policy on the issue of Internet piracy, although Delimiter has requested comment on the issue several times from figures such as Shadow Attorney-General George Brandis.

Speaking on the ABC’s Political Forum show with host Richard Glover (transcription available here), Turnbull said the content industry currently faced “a very big challenge” with respect to its future. ” I think firstly, we have to move to a system of global copyright where basically people — there are no territorial limitations on copyright,” he said. “Because I think the internet is basically made that all unworkable.”

iiNet chief executive Michael Malone wrote on iiNet’s blog this week that he was a big of a “tragic” for the HBO TV show Game of Thrones (inspired by the classic fantasy book series A Song of Ice and Fire by George R. R. Martin) and it was “killing” him to know that he would have to wait several weeks before he could legally watch new episodes in Australia — even though Internet pirates had already made the content available on BitTorrent.

“Basically you’ve got to recognise that the minute Game of Thrones or any other show is put to air, it will be available globally,” said Turnbull “.So the owners of that copyright have got to be in a position where it can be released simultaneously theatrically, or in the case of something like that on Pay TV everywhere. But also, it should be for sale through the iTunes store or various other platforms at the same time.”

“Because if it’s not for sale — because what’s happening is, Game of Thrones, episode three I think goes on air this week in Australia. I think it went to air a couple of weeks ago in the States. It’s been tweeted and written up and Facebooked endlessly – and if they can download, they will. Now we’re just kidding ourselves — all they are doing is throwing money away by not making it available instantly.”

Turnbull said he wasn’t suggesting that it was possible to stop people downloading material illegally, but the film and TV studios could “mitigate” that sort of behaviour by making the cost of a legitimate download a lot lower.

The Liberal MP also emphasised that it was important to maintain intellectual property rights, as they helped drive Australia’s creative industries. However, he said the High Court came to the right decision in the iiNet trial, and he “really” welcomed iiNet’s victory. “It is very, very, very difficult if not impossible for someone that is just selling connectivity, just providing bandwidth to then be monitoring what people are doing,” said Turnbull, citing his past background as chairman of 1990′s leading ISP OzEmail, which itself has now been subsumed into iiNet.

opinion/analysis
It’s all very nice that Turnbull welcomes the outcome of the iiNet trial, and of course his view that content needs to be released simultaneously globally through multiple platforms both online and offline is a very mainstream one — perhaps the mainstream one. Turnbull’s speaking common sense here, and it’s great to hear that from the Coalition, which often seems to be in short supply of this valuable commodity.

However, Turnbull’s statements this week don’t really give us any insight into what the Coalition’s actual policy is on this important issue.

Let me make myself clear. The Labor Federal Government is currently holding highly controversial closed door meetings between the ISP and content industries, with the view of forming an industry code on Internet piracy. The Government has consistently blocked requests for more information on what is being talked about at the meetings, has heavily censored Freedom of Information requests into their content, and has denied requests by consumer groups to attend. The issue has become so serious that the Greens have filed a Senate motion for documents pertaining to the most recent meeting in February to be produced.

Therefore, what we need from Turnbull and his colleagues in the Coalition is not a personal opinion and some whimsy about how good Game of Thrones is (although everyone seems to agree that it’s excellent, an issue on which we concur), but some real answers about what the Coalition would do about this issue if it wins the next election. A policy, in short, a policy. Isn’t that what political parties are supposed to produce? In 2012, the practice seems to have gone out of style, having been replaced by individual politicians making off-the-cuff comments in daily media appearances. In this context, it is perhaps not so important that we know that winter is coming, so to speak, but what our rulers intend to do about it.

Image credit: HBO (promotional shot from Game of Thrones TV show)

Piracy meetings still censored: “No public interest”

Renai LeMay — Tue, 24 Apr 2012 05:52:32 +0000

news An internal Government review has backed a decision by the Federal Attorney-General’s Department to censor almost all information about the secret Internet piracy meetings the department has held with the content and ISP industries over the past six months.

Over the past six months, the Federal Attorney-General’s Department has been hosting a series of closed door meetings between the content industries, represented by groups such as the Australian Federation Against Copyright Theft, and Internet service providers such as iiNet and Telstra. The meetings have also been attended by industry groups such as the Communications Alliance, although consumer groups have been explicitly barred from attending.

Earlier this year, Delimiter filed a Freedom of Information request seeking details of the latest meeting, held in February, seeking details such as a list of attendees, notes taken by any government staff, a copy of documentation issued to attendees, email correspondence related to the calling and conduct of the meeting, and internal departmental correspondence regarding it.

However, the Government subsequently used a variety of complex legal justifications to avoid releasing virtually any detail of the meeting under FoI laws. Subsequently, Delimiter appealed the decision and requested an internal review of the Attorney-General’s Department’s justifications. In addition, the Greens have filed a Senator order requesting the documents be produced, although that motion will not be voted upon until May.

This afternoon, the Attorney-General’s Department has made public the results of its internal review. The department’s director of its FOI and Privacy Section, Malcolm Bennett, wrote in a letter to Delimiter that he backed the initial decision to censor the piracy meeting material from being made public. “I have, in short, decided to affirm [AGD senior legal officer Jane Purcell]‘s decision to exempt all the notes in full pursuant to section 47C of the Freedom of Information Act,” wrote Bennett.

One of the main legal instruments used to deny the initial release of information was section 47C of the FoI Act, which exempts material from being disclosed if it would disclose material which was involved in the deliberative or consultative processes of the government. In the previous FOI decision, Purcell had used the section 47C clause to deny the release of 14 pages of notes taken by a departmental staffer at the piracy meeting and another four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department.

“As advised earlier by Ms Purcell, the notes in question record discussions which took place at the meeting about proposed industry solutions to the issue of online copyright infringement,” wrote Bennett. “As also advised by Ms Purcell, such discussions are still ongoing. I have affirmed Ms Purcell’s decision that the meeting notes comprise material recording the substance of consultation and deliberation that has taken place in the course of, and for the purposes of, the deliberative processes involved in the functions of this department.”

Bennett noted, as Purcell also did, that another section of the FoI Act required such material to be disclosed unless doing so would be contrary to the public interest.

“I have decided that disclosure of these documents would be contrary to the public interest,” he said. “My reasons for so concluding are essentially the same as Ms Purcell’s — that is, that the discussions that are taking place are at a delicate and sensitive stage.”

“Disclosure of the details of them at this stage would, in my view, prejudice, hamper and impede those negotiations to an unacceptable degree. I agree with Ms Purcell that such a disclosure would be contrary to the interests of good government — and, by definition, contrary to the public interest.”

In Delimiter’s communication with the Attorney-General’s Department requesting a review of the initial FoI request, we had argued that it seemed unreasonable that the entirety of the 18 pages of notes be redacted.

“I would anticipate that there would be sections of these notes which would be trivial, and the redaction of the entire documents is a rather heavy-handed approach,” we wrote in our email to the department. “A more targeted approach, redacting sensitive portions of those notes only, would seem a more appropriate response to the spirit of a Freedom of Information request, and I note that AGD has taken this redaction approach in other sections of the documents.”

Delimiter also objected to the notion that it was not in the public interest to release the documents in full.

“As demonstrated by the degree of interest in this issue amongst the readership of sites like Delimiter (with many thousands of readers interested in this information), it seems clear that the public is highly interested in gaining more information about this situation,” we wrote. “This is further evidenced by the fact that consumer groups and other ISPs have also requested to join the meetings – but been denied. In addition, I am informed that the issue will also be raised in the Senate this week, further demonstrating that there is a public interest in the documents being released.”

iiNet chief executive Michael Malone has reportedly said that his preference would be to stop participating in the talks held by the Attorney-General’s Department.

Delimiter is currently investigating appealing the decision of the Attorney-General’s Department by having it externally reviewed by the Office of the Australian Information Commissioner.

opinion/analysis
Not in the public interest? Judging by the many thousands of people who read Delimiter’s articles on the iiNet versus AFACT High Court case last week (tens of thousands of people on Delimiter alone), and the fact that the matter has been raised in the Senate, I would say there is a huge amount of “public interest” in what is happening in these secret meetings being held by the Attorney-General’s Department.

I am aware that “in the public interest” does not simply mean “people want to know”. However, especially now that the iiNet High Court case has been finalised, it is of paramount importance that the Australian public knows what is being discussed in these meetings, so that it can its own say on this weighty national issue. These talks should be held in the open, with representatives of consumer groups able to attend. And media outlets such as Delimiter will not stop probing the Attorney-General’s Department on this issue until they are.

Image credit: Attorney-General’s Dept, with slight editing.

Reality check: AFACT is not planning mass lawsuits

Renai LeMay — Tue, 24 Apr 2012 01:14:37 +0000

analysis Worried that AFACT will start suing individual users, now that it has lost its High Court case against iiNet? You needn’t be. The organisation itself has denied any such plans, and even the legal case to identify Australian Internet pirates is on shaky ground at the moment.

Over the past few days since the High Court handed down its judgement in the high-profile court case between a coalition of film and TV studios represented by the Australian Federation Against Copyright Theft and iiNet, a great deal of speculation has arisen that the organisation, bruised and bloody from its battle with the ISP, will go after individual users next, targeting those actually doing the alleged copyright infringing, rather than the ISPs on whose networks it takes place.

And, to some extent, it’s a legitimate fear. Well, on paper, at least — if not in reality.

The threat of this kind of ‘mass piracy lawsuit’ behaviour has been held to Australia’s throat before. In October last year, for instance, a new and somewhat shadowy firm dubbed ‘Movie Rights Group’ sprung up and proposed to engage in just such mass legal action. Movie Rights Group’s initial targets consisted of some 9,000 Australians who had allegedly pirated the little-known film Kill the Irishman over the past 12 months.

Such programs of legal action — which commentators have commonly analysed as profit-making exercises rather than actions aimed at pure copyright enforcement — are relatively common in the US. 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. And there have been a number of other similar programs, with similarly high-profile results.

The most visible face of the fear that this kind of behaviour could hit Australia is an article published by the Financial Review newspaper over the weekend. With the flagrant headline “Users warned they could be next”, it struck fear into the hearts of Australian broadband users that Big Brother was watching their Internet connections, cataloguing their downloads and preparing the legal writs. It cited eminent sources such as IP lawyer and Electronic Frontiers Australia secretary Kimberley Heitman, Theresa Corbin from the Australian Communications Consumer Action Network and iiNet chief executive Michael Malone and regulatory chief Steve Dalby, all discussing the issue of AFACT suing end users.

Just reading the article, I’m sure, gave many readers a chill down their spine. After all, we all know people who religiously download the latest episode of Game of Thrones every week. Could they become the subject of multi-million-dollar lawsuits?

In a word: No.

Buried in the Financial Review’s article was an extremely salient point against this scenario, made by none other than … AFACT executive director Neil Gane, who you might expect to be an expert on the copyright lobby’s plans in the area. Gane, as a number of other media outlets have also noted, categorically denied any plans to sue individual Australians over Internet piracy, in an open press conference last Friday.

“I can say at the current stage, at the current time, we have no plans to sue end users in Australia,” he said. “We have always maintained that we prefer a more proportionate and effective approach, which is for ISPs to notify their customers.”

Well. It doesn’t get much clearer than that. The Financial Review’s headline should have been: No plans to sue end users, says AFACT. But of course, that wouldn’t stoke the fear (and page impressions) amongst readers, would it? Truth rarely does.

But wait, you may say. AFACT could be lying — it’s not exactly the most transparent of organisations, and if Movie Rights Group could start suing thousands of Australians, what’s to stop AFACT and the many film and TV studios that it represents from doing the same?

Well, to start with, it’s important to note that it looks like, following a rash of negative publicity, Movie Rights Group appears to have shut down, with its web site deleted from the Internet and its chief spokesperson having moved on to other roles. However, there are also deep questions about whether it is actually possible for content owner organisations like film and TV studios to directly sue individual Australians for allegedly pirating their content online.

The legal mechanism which Movie Rights Group’s litigation was to rely on is a very similar one which is used in the US. In short, a rights holder such as a film or TV studio approaches an ISP like iiNet with a subpoena from a court. That ISP is then more or less compelled to provide the individual’s details to the rights holder so that they can be sued directly, leaving the ISP out of the legal equation. Typically, in the US, the rights holder will approach the ISP with a list of thousands of users’ details which it wants — and then the mass piracy lawsuits begin, after the necessary identification details are handed over.

Now, some Australians — such as the late chief executive of Exetel, John Linton — have had a strong belief that this mechanism can be used in Australia. This belief was fuelled by the judgement of the full Federal Court in the iiNet/AFACT case, which some legal experts had believed opened the door for this kind of discovery process, and mass lawsuit process, in Australia. And this is also what Movie Rights Group had believed, after what it had said last year had been extensive investigation of the area.

However, this kind of legal approach hasn’t yet been tested in Australia, and even Linton was planning to tell Movie Rights Group to go take a long jump off a short pier if it tried it. In practice, we don’t quite know what would happen, should an organisation like AFACT seek to subpoena thousands of user details from an ISP like iiNet. In addition, last week’s High Court judgement brought further evidence that such action was unlikely. The High Court, in its judgement, stated:

“The appellants [AFACT and so on] have brought no legal action against any individual user of the internet services provided by iiNet for any primary infringements of copyright … and it did not appear to be in contention that it would be somewhat impractical to do so.”

In addition, the judgement referred to another prior judgement, in which the judge had “referred to the possibility of copyright owners taking action against individual infringers as a “teaspoon solution to an ocean problem”.”

What I’m saying here is that there is both a lack of desire on the part of organisations like AFACT, and the content owners they represent, to conduct mass piracy lawsuits in Australia as well as a lack of legal clarity about to what extent they’re possible at all, especially if ISPs like iiNet continue to push back against rights holders legally. And let’s not forget that iiNet is not alone in its approach to the issue — it has been broadly supported in its court defence by Telstra, for example.

Most legal commentators on the iiNet case have been quite clear (see Nic Suzor’s excellent analysis here, for example) that the next steps in the issue in Australia will very likely involve lobbying by groups like AFACT for a legislative solution to its woes. In fact, that lobbying has already begun. In addition, many feel that we will shortly see more compromise behaviour from rights holders in making their content more widely available in Australia.

In this context, articles speculating that ‘users could be next’ in the legal gun barrels are not useful contributions to the discussion about online copyright infringement in Australia. They are nothing short of fearmongering. Internet piracy and the legal availability of content are important issues which need to be discussed honestly and transparently in Australia so the nation can move forward on becoming a leader in the digital economy sphere. Consequently, any debate about these issues should be based on truth — not groundless conjecture.

iiNet’s Hollywood ending: what does its court victory mean for copyright law?

External Contributor — Mon, 23 Apr 2012 02:29:02 +0000

This article is by Nicolas Suzor, a Lecturer in the Faculty of Law at the Queensland University of Technology. It was first published on The Conversation and is re-published here with permission.

analysis In what is being billed as iiNet versus Hollywood, the Australian internet service provider has come out an apparent winner after the High Court dismissed a copyright infringement case brought by industry movie studios. The case was a final appeal by the industry in its attempts to crack down on internet users infringing copyright by using BitTorrent to download movies. Nicolas Suzor, lecturer, Faculty of Law at Queensland University of Technology, explains the decision and what it means.

What’s the background to today’s decision?

This decision is the culmination of the last few years of litigation by the Australian Federation against Copyright Theft (AFACT), in conjunction with 34 movie studios. They sought to argue that iiNet, which is Australia’s second largest internet service provider, was liable for copyright infringement when its users used their home internet connections to download and upload movies using the BitTorrent protocol.

The High Court has found in line with the lower level court decisions that iiNet was not responsible for the actions of its users. The evidence before the court was that iiNet hadn’t done anything beyond providing the internet connection. The High Court found in order to be liable something more is required – iiNet cannot be liable for merely being inactive in response to allegations of infringement of copyright made by AFACT. Importantly, the High Court ruled that it would not be reasonable to expect iiNet to disconnect the accounts of its users solely on the allegations of infringement provided by AFACT.

What are the implications of this decision? Other internet service providers will no doubt be watching with great interest.

It’s a very important decision worldwide. We’ve only seen a few of these decisions so far. There was one in the Irish High courts where the Irish ISP Eircom was found liable for infringement on its network.

This decision in Australia is the most considered decision that we have seen in common law countries. It represents the next iteration of an attempt by copyright owners to enlist the aid of internet service providers to police infringement on the internet.

Over the past 15 years, copyright owners have had trouble using litigation to deter copyright infringement. They started off targeting companies like Napster and Kazaa, who were clearly encouraging the infringement of copyright by developing peer-to-peer file sharing networks that were designed to allow people to share copyrighted materials.

Then those technologies started to become decentralised and the copyright owners found they could not sue the developers of technologies like BitTorrent because they are such widely used general-purpose protocols, and they couldn’t sue end users because it tends to be terribly expensive, terribly unpopular, unfair and, realistically, quite ineffective.

So most recently, they have been trying to impose a duty on domestic ISPs to police infringement on the network. This approach is attractive because ISPs are quite big targets and, by imposing regulation at that point, they can potentially have quite a strong flow-on effect on the ability to control what users are actually doing.

This is quite an important decision worldwide because a lot of different countries are trying to look for different ways to target infringement and trying to sort out the principles on which ISPs should and should not be required to police what is on their network.

France had a quite controversial three strikes regime, which was struck down by the Constitutional Court and, in the end, was recast as a more limited and legitimate judicial regime. Both the UK and NZ have also introduced controversial “graduated response” regimes, where users will be progressively warned and potentially have their internet accounts terminated when they are found to have infringed copyright. The US has not gone so far, but the major ISPs have agreed with copyright owners to introduce some form of private notification scheme.

What about here in Australia?

Here in Australia this was seen as a test case to see if ISPs already have a duty to police Australian internet users under the law. It was quite ambitious in that the duty to terminate is not explicit under Australian law. The questions was whether or not ISPs that did nothing more than provide a connection could be liable. If they were, that would impose on them an obligation to do something about copyright infringement – although AFACT was never quite clear on what exactly it expected ISPs to do.

So what will the next move be from copyright owners?

I think two things may happen. This decision provides a good deal of certainty to Australian ISPs under current law, so copyright owners will likely increase pressure on policy makers to develop a new legislative regime. Copyright owners are still looking for a way that they can enlist the help of intermediaries such as ISPs to police copyright infringements, although such regimes are often highly controversial. It is unclear at this stage whether the federal government will entertain copyright industry demands for a three-strikes or similar system in Australia, particularly in the face of strong public opposition worldwide. At any rate, little is expected to change before the Australian Law Reform Commission completes its review of the copyright system near the end of 2013.

We are also starting see the emergence of an acknowledgement by copyright owners that it is important to develop business models which provide consumers with cheap, high quality and fast access to entertainment and other copyright material. The one thing that has worked in last 15 years is increasing access: models like iTunes, Amazon’s Kindle, and Netflix have been able to successfully provide a legitimate and convenient alternative to infringing filesharing.

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

Back off, AFACT: Changing the law is not the answer

Renai LeMay — Mon, 23 Apr 2012 01:39:16 +0000

opinion The Federal Government should ignore the pathetic demands of the film and TV industry for new legislation to “exterminate” Internet piracy and instead wait for the sector to fix the blatantly obvious problems with its commercial model, following its latest loss in Australia’s High Court. Australia’s copyright law works well as it stands, and does not need changing.

If there is one thing which Australia has learnt by now about the Australian Federation Against Copyright Theft, it is that, like the Daleks of the classic Dr Who television series, the organisation and the coalition of global and local film and TV studios which back it simply never gives up.

AFACT has now suffered no less than three defeats in Australia’s courts system in as many years in its high-profile case against Internet service provider iiNet. After its initial case was filed against iiNet in November 2008, the Federal Court first knocked back AFACT’s claim that iiNet was authorising the infringement of copyright through letting its users use the BitTorrent file-sharing platform in February 2010. Not satisfied with that result, AFACT appealed, and was knocked back again twelve months later. AFACT subsequently appealed again, and on Friday last week, the organisation lost yet again, with the High Court — the last court of appeal — denying AFACT any avenue of future legal recourse against iiNet. That’s right: Every year, for the past three years, Australia’s courts have found that AFACT’s pursuit of its case against iiNet is illegitimate. It’s beginning to be an annual tradition.

And yet, like the Daleks (who also tend to appear at least once a year, sometimes in the December Christmas special), AFACT just keeps on coming, in its fruitless quest to ‘exterminate’ file sharing at any cost. One gets the feeling that, like the Daleks, AFACT could survive almost any catastrophe with its mission intact. No matter how many times The Doctor blows up, dismantles or re-orients the Daleks, they never completely disappear from the picture, and repeatedly re-appear to challenge the Earth one more time and destroy all human life as they know it.

One can’t help but imagine that AFACT could similarly suffer any number of court losses and never give up. Every single time it loses, the organisation’s executive director Neil Gane appears for a public press conference, dogmatically repeating the same messages. “EXTERMINATE!” he screeches for the TV cameras. “INTERNET PIRACY MUST BE EXTERMINATED!”

Now the weakness of the Daleks has always been that they are highly single-minded, and thus fairly predictable. They accept no compromises and do not wish to co-exist with other species, preferring instead to eradicate them. Thus, it came as no surprise that (as several pundits predicted — here and here — following the verdict last week), the similarly single-minded AFACT did not accept its third legal defeat in as many years, but immediately flagged its intention to appeal to a higher power: The Federal Government. However, just as The Doctor continually rejects the Dalek’s single-minded approach, there are a number of reasons why Australia’s Government should reject AFACT’s call for legislative redress for its problems.

Firstly, the Government must take into account the fact that Australia’s copyright regime is currently functioning well for other industries.

The music industry, which had historically taken a similarly litigious view of Internet piracy as the film and TV studios, backed away from the issue after it became clear that consumers preferred convenient legal download options such as Apple’s iTunes. Version 2.0 of the legal online music paradigm is now entering Australia with the launch of music streaming services such as Spotify and Rdio. The games industry has similarly worked within existing copyright law to transition its business model towards legal online downloads through platforms such as Valve’s Steam, Microsoft’s Xbox Live, Sony’s PlayStation On Demand and more. Video game piracy doesn’t appear to be a major problem in Australia at the moment, with the overwhelming majority of customers preferring legal options instead of illegal ones.

And lastly, even the book industry, which also produces a wide range of content, has also resolved most of its digital issues, with platforms such as Amazon’s Kindle store and Apple’s iBooks providing lucrative ways for authors to make returns on their content generating investment without resorting to enforcement action on ISPs.

The film and TV studios appear to be the only segment of the broader content industry which has been unable to transition to a new digital reality within Australia’s current copyright regime. If the Federal Government changes Australia’s copyright law to introduce some kind of mandatory industry protocol between ISPs and film and TV studios on the issue of Internet piracy, it has to face up to the fact that it may unlock Pandora’s box and destabilise the very strong progress which has been made on other fronts in monetising the digital environment.

In short, it appears apparent, given the experiences of other related industries, that the Internet piracy issues being experienced by the film and TV studios are problems of their own making — because they have not transitioned to a new digital model — rather than the sort of systemic legislative issue which would need to be addressed centrally by the Government.

Secondly, there is the problem of the rights holders’ intractability on the issue. The Daleks have never accepted any compromise when it comes to the extermination of the human race, and content owners have similarly demonstrated over the past year a lack of willingness to seriously sit down and negotiate with respect to their problems.

The Government (in the form of the Attorney-General’s Department) has already been holding talks between the ISP and content industries on the issue of online copyright infringement; talks involving AFACT and other content industry groups, and iiNet and other ISP industry groups. As iiNet regulatory chief Steve Dalby said publicly several weeks ago, the talks have been going nowhere, with the two sides locked rigidly on opposite sides of the online copyright infringement fence and unwilling to meet each other in the middle. “The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill,” he said. “ISPs don’t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.”

However, although Dalby has characterised the talks as being between two sides, neither of which wants to give any ground, this portrayal is actually inaccurate.

The truth is that Australia’s ISP industry has shown itself quite willing to compromise on the issue of online copyright infringement. In November last year, the ISPs proposed an anti-piracy education and warning scheme which would see allegedly infringing customers issued with education notices, leading eventually to a so-called ‘discovery’ notice which would allow rights holders to eventually pursue individual customers themselves through the courts. However, at the time, the Australian Content Industry Group categorically rejected this scheme, stating that it fell “well short of the expectations we had had for an open, balanced and fair solution”. It was basically a “we don’t negotiate with terrorists” kind of answer — no quarter given.

What this should indicate to the Federal Government is that if it does examine the case for modifying Australia’s copyright law, it will not find a reasonable and practical argument on the case coming from the film and TV studios being represented by AFACT. Instead, what it will find is a strongly one-sided argument which will not aid it in making good policy and balanced legislation. Why should any Government deal openly with such an intractable and single-minded group of organisations? The reality is, it shouldn’t. The Federal Government should wait until the film and TV studios appear prepared to negotiate a balanced case before stepping in on the issue of online copyright infringement. Only then would it achieve any ground on the issue.

Lastly, there is the issue of the Government’s own position on the issue.

The fact that the two sides of the debate — ISPs and content owners — are so strongly opposed in the copyright infringement debate leaves the Government with nowhere to go on the issue. It cannot afford to take one side or the other, for fear that it will bring the wrath of the other down upon its head. If it enforces an arbitrary enforcement mechanism on Australia’s ISPs, it risks huge public displeasure and even the possibility of court challenges. Don’t discount the power which telcos like Telstra wield. When Telstra speaks — as it has in the past, backing iiNet on the issue of Internet piracy — Australia’s public listens.

If it goes too far towards the other side, however, publicly backing the ISPs completely on the issue, the Government risks alienating the powerful media interests, especially the US film and TV studios which have been central to a wave of US legislation aimed at curbing Internet piracy globally. The Australian Government does not want to be seen to be publicly rebuking the sorts of US interests represented by the content industry.

Thus the government’s preference for an industry-led settlement on the issue — a position which allows it to avoid irritating both local and global stakeholders. By doing nothing, Australia’s Government is right now thinking, it will upset no-one.

When you take all of these factors into account — the fact that Australia’s copyright regime is working for other branches of the content industry, the lack of willingness by AFACT and its backers to negotiate on the issue at all and the treacherous minefield the Government faces in forming policy in this area — it seems obvious that the Government should ignore AFACT’s demands for legislative relief following the iiNet High Court case and simply sit on its hands for a while to see how the situation pans out.

My personal bet is that in three to four years, the issue will have gone away entirely, as the film and TV industry moves to new commercial models delivered entirely through the Internet. With the music, games and book industries already having gone strongly down this path, it is only a matter of time before the film and TV studios do too, resolving the matter once and for all — in the favour of consumers, and the funding of great content widely available on the right terms for all.

If the Government waits a little, one suspects, this troublesome debate and perhaps even AFACT itself will be exterminated — once and for all.

Image credit: Tony Hisgett, Creative Commons

Govt to continue secret anti-piracy talks

Renai LeMay — Fri, 20 Apr 2012 05:37:34 +0000

news The Federal Government would “closely examine” the High Court’s judgement in the long-running copyright infringement case won by ISP iiNet over film and TV studios this morning, Federal Attorney-General Nicola Roxon said this afternoon, as she noted that closed-door talks held by her department with industry on the matter would continue.

The High Court this morning knocked back a final appeal by the studios, represented by the Australian Federation Against Copyright Theft. The studios first took iiNet to court in 2009, claiming iiNet had “authorised” its users to download pirated movies and TV over the Internet. However, the court said today, iiNet had no ability to prevent its customers from infringing copyright, and copyright law was not suited to enforcing the laws of content owners through such platforms. Subsequently, AFACT said the loss illustrated that Australia’s Government needed to step in and take action on the issue of Internet piracy.

“The Government will examine the High Court’s decision closely,” said Roxon in a brief statement in response issued this afternoon.

The news comes as the Federal Attorney-General’s Department has over the past six months hosted a series of closed door meetings on the issue between ISPs like iiNet and rights-holder organisations such as AFACT, with industry groups such as the Communications Alliance also involved. Subsequent Attorneys-General (Roxon and her predecessor Robert McClelland) have emphasised their desire for an industry-led solution to the issue.

“Industry stakeholders have been meeting regularly during the last year to develop a code of conduct to address the issue of illegal downloading,” Roxon added this afternoon. “The Attorney-General’s Department will continue to facilitate these discussions and we hope that industry will continue to work together to find a range of solutions to illegal downloading.”

However, the meetings held by the Attorney-General’s Department have been less than transparent, and according to iiNet, have been going around in circles.

The Attorney-General’s Department has used a series of complex legal arguments to deny the release of documents associated with the meetings under Freedom of Information laws — redacting, for example, an entire 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department. The moves have led to the Australian Greens filing a motion in the Senate requesting that the documents be released. In addition, representatives of consumer groups have been explicitly barred from attending the talks.

This afternoon, iiNet chief executive Michael Malone reportedly said his company might simply back away from the meetings altogether. “My preference would be to walk away now,” he said at a press conference, according to iTNews.

Another key telco involved in the talks, Telstra, this afternoon said in an emailed statement that it remained open to constructive discussions with rights holders, the industry, consumer groups and Government to seek a response to this issue that “appropriately balances the interests of all stakeholders”.

The sole organisation to publicly reveal any information about the talks has been iiNet. Recently, the ISP’s regulatory chief Steve Dalby posted comments on Delimiter stating that there was a “massive” gap in the talks between what the ISP and content industries wanted. “Most, if not all of the discussions over the years have been conducted between the rights holders and the ISPs,” he said. “These have been fruitless. The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don’t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.”

Separately, a coalition of most of the nation’s major ISPs last year 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. At the time, AFACT declined to comment on the issue, citing the need for the iiNet trial to go ahead.

Consumer input needed
Today another group associated with copyright issues, the Australian Digital Alliance, which primarily represents universities, libraries and some Internet-focused organisations such as Yahoo and Google, said it didn’t believe the battle between ISPs and the content sector was over yet, stating the High Court had “left open the possibility of a targeted legislative scheme to address unauthorised file sharing issues”.

However, the group’s chairman Derek Whitehead issued a warning that any legislative response to the High Court ruling must be carefully balanced and informed by the needs of consumers, as well as the content industries and ISPs.

“The Attorney-General’s Department has been working on an industry solution with the ISPs and content industries for some time. Consumers should be included in these discussions, because consumers, as end users of copyright material stand to be greatest affected by any legislative or industry outcome,” Whitehead said in a statement.

“The ADA encourages the Government to take wide consultation on this issue, and to ensure that consumer representatives are brought into the discussions,” the ADA statement said. “A fundamental issue to be taken into account in any legislative or industry response is the lack of legitimate content available to consumers in Australia. More needs to be done to make content available in an affordable and accessible way.”

The comments echo statements made in January by the Greens.

“What I find the most offensive about that, is that they locked the people out of the room that actually matter,” Greens Communications Spokesperson, Senator Ludlam said at the time. “All of the writers, the creative artists, the performance people, they’re not in there. The rights holders are in there. The end users, the consumers … us, are locked out of the room as well.”

Ludlam said it was the “intermediaries” who were discussing the issue under the auspices of the Attorney-General’s Department, who had been told to come up with something that was “not too offensive” for their corporate interests. “They’ve locked out the producers and consumers. The model which will be introduced in Australia, when we get to hear about it, will probably be stuffed and offensive,” he added.

Image credit: Timeshift9, Creative Commons

Defence worthy of a High Court victory? “Yes, Minister”

Renai LeMay — Fri, 20 Apr 2012 03:53:04 +0000

blog Given iiNet’s conclusive victory in its High Court defence against AFACT this morning, it seems an appropriate time to remind readers of Communications Minister Stephen Conroy’s opinion of the case, aired in March 2009. According to a ZDNet.com.au report at the time, Conroy said:

“I saw iiNet’s defence in court under oath; they have no idea if their customers are downloading illegally music or movies. Stunning defence, stunning defence … I thought a defence in terms of ‘we had no idea’ … belongs in a Yes Minister episode.”

Yes, Minister. Or maybe … no, Minister?

Image credit: kjd, Creative Commons

AFACT demands Govt action over iiTrial loss

Renai LeMay — Fri, 20 Apr 2012 03:27:25 +0000

news The Australian Federation Against Copyright Theft (AFACT) today said its high-profile loss in its High Court case against ISP iiNet illustrated that Australia’s Government needed to step in and take action on the issue of Internet piracy in Australia.

This morning the High Court dismissed an appeal by AFACT and its cohort of several dozen film and TV studios, in the conclusion of a long-running case in which the content owners had alleged iiNet had authorised the infringement of copyright through not taking action against the pirating activities of its users through platforms such as BitTorrent. The case is viewed as setting a precedent for how Australian ISPs will deal with Internet piracy in future.

However, in a statement issued this afternoon, AFACT said the war was not over. “Today’s decision by the High Court exposes the failure of copyright law to keep pace with the online environment and the need for Government to act,” AFACT said in a statement this afternoon.

AFACT managing director Neil Gane (pictured) said in their judgement, the High Court judges had “unanimously recognised that legislative change was required to address the widespread copyright infringements via peer to peer technology in Australia”. “Both judgements in this case recognise that copyright law is no longer equipped to deal with the rate of technological change we have seen since the law of authorisation was last tested,” said Gane. “They both point to the need for legislation to protect copyright owners against P2P infringements.

“The Judges recognise the significant rate of copyright infringement online and point to the fact that over half the usage of iiNet’s internet service by its customers (measured by volume) was represented by Bit Torrent file sharing which was known to be used for infringing activities,” Gane added. “Now that we have taken this issue to the highest court in the land, it is time for Government to act.”

In the High Court’s judgement in the case, the court found that the concept and the principles of the statutory tort of authorisation of copyright infringement were “not readily suited” to enforcing the rights of copyright owners with respect to widespread copyright infringements through platform such as BitTorrent.

“The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes, some of which incorporate co-operative industry protocols, some of which require judicial involvement in the termination of internet accounts, and some of which provide for the sharing of enforcement costs between ISPs and copyright owners,” the court added.

Gane said AFACT and its partner organisations were confident that the Government would not want copyright infringement to go on unabated across Australian networks, “especially with the rollout of the National Broadband Network”, and that the decision showed that Australian law had been left behind by overseas developments in “online copyright protection”.

“In the three years since the case commenced, legislators, regulators and courts around the world have mandated that ISPs must play a central role in preventing online copyright theft,” he said. “Fortunately, many ISPs have come to the conclusion that being involved in online copyright protection is in their commercial interests,” he said. “ISPs are becoming increasingly dependent on monetising legal content and therefore protecting its value.”

Gane said it was too early to comment on the details of the decision but that the copyright owners would be having discussions with Government in due course.

“We thank the actors’ union (MEAA), and songwriters, composers and publishers (APRA), who also had concerns about the outcome of this case, for taking the time and effort to express them to the court,” he concluded. “We would also like to acknowledge all content creators whose movies, music, pictures and words we all enjoy and for whom today’s decision must be extremely concerning.”
The news comes as the Federal Attorney-General’s Department has over the past six months hosted a series of closed door meetings between ISPs like iiNet and rights-holder organisations such as AFACT, with industry groups such as the Communications Alliance also involved.

In addition, representatives of consumer groups have been explicitly barred from attending the talks.

The sole organisation to publicly reveal any information about the talks is iiNet. Recently, the ISP’s regulatory chief Steve Dalby posted comments on Delimiter stating that there was a “massive” gap in the talks between what the ISP and content industries wanted. “Most, if not all of the discussions over the years have been conducted between the rights holders and the ISPs,” he said. “These have been fruitless. The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don’t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.”

iiNet wins High Court Internet piracy trial

Renai LeMay — Fri, 20 Apr 2012 00:08:47 +0000

news iiNet today emerged victorious in a landmark High Court victory against a coalition of film and TV studios on the issue of Internet piracy through peer to peer platforms like BitTorrent, in the conclusion of a long-running case which is viewed as the a test for how Australia’s telecommunications industry will deal with the issue in future.

“#iitrial appeal dismissed!” wrote iiNet chief executive Michael Malone on Twitter this morning. A statement by the court, available online in PDF format, states:

“Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants’ copyright in commercially released films and television programs.”

It appears that the full judgement is available online here.

A group of 34 parties, comprised of most major Australian and American film studios and led by umbrella organisation the Australian Federation Against Copyright Theft, first took iiNet to court in 2009 after claiming iiNet had “authorised” its users to download pirated movies and television over the Internet. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises and the Seven Network (Australian licensee of some of the infringed works).

After the original decision of not guilty made in February 2010 was appealed, the full Australian Federal Court ruled on appeal in February 2011 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 2011, with the High Court of Australia for a special leave to appeal grant. In August the High Court agreed to hear the case.

Today, in its statement, the High Court noted that it had “unanimously” dismissed AFACT’s appeal.

“The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films,” its statement read. “Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers.”

Referring to a large number of copyright infringement notices sent to iiNet, which some ISPs forward on to their customers (but iiNet does not), the HIgh Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with “a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers”. iiNet has always maintained such issues should be handled by the police, involving a reasonable burden of proof that a user has infringed copyright.

“For these reasons, the Court held that it could not be inferred from iiNet’s inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the
appellants’ films by its customers,” wrote the Court.

iiNet CEO Michael Malone (pictured) has consistently called on the industry to come to a “workable” solution to piracy problems instead of litigating the issue. iiNet itself provides access to film and TV content through a bundled IPTV set-top box developed by a partner company, FetchTV. “I know the Internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone said in August last year. “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.”

However, AFACT and its member organisations haven’t been so keen. In July AFACT wrote 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.

It is believed that AFACT considers early judgements in its case against iiNet 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 mid-2011, a number of ISPs have confirmed the organisation has approached them about the matter. It is not yet clear how today’s judgement will affect the way AFACT interacts with the broader industry.

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.

iiNet and AFACT are also engaged in out of court talks regarding Internet piracy, with the Federal Attorney-General’s Department holding a series of meetings through late 2011 and early this year between iiNet, AFACT and other telcos, content owners and representative groups. However, consumer representatives have been explicitly barred from the talks, and the department has consistently declined — even through the Freedom of Information request process — requests by media outlets for more information about what is being discussed.

Australia’s division of the Pirate Party, a political movement which campaigns for digital rights and has been successful electorally in Europe, said in a statement that it should come as “no surprise” that it welcomed the ruling.

“We reiterate that ISPs behave similarly to the postal service – they are the carriers of the message, and that message should remain private,” said Brendan Molloy, Secretary of Pirate Party Australia. “It is not their business to police users, but merely to comply where necessary with authorities. ISPs are not, and should never be, responsible to anyone other than their subscribers and local law enforcement agencies.”

“However, this is not the end of the issue. We have continually protested against the closed-door meetings conducted by the Attorney-General’s department, in which industry representatives are given priority, and the public are ignored. The citisens of Australia are being refused participation in the ‘piracy debate,’ when they should be the most vocal of concerned parties,” Molloy continued. “Copyright is not just an issue for rights holders and service providers – the voice of the public must be given priority above all else.”

The response
In a statement released immediately following the judgement, iiNet chief executive Michael Malone thanked staff, customers, supporters and iiNet’s legal team, from law firm Herbert Geer, for their strong support throughout the case, and said the judgment supported the company’s position and proved the claims made against it were unfounded.

“iiNet has never supported or encouraged unauthorised sharing or file downloading,” Malone said. “Today’s High Court five-nil ruling confirms that iiNet is not liable for ‘authorising’ the conduct of its customers who engaged in online copyright infringement. This marks the end of more than three years of legal argument and challenges.”

Malone reiterated his view that “increasing the availability of lawful, online content in a more timely, affordable and reasonably priced manner”, brought the focus back to customers and was the best method to protect content owners’ copyright. He said there was strong evidence that content partnerships and agreements between ISPs, legal websites and copyright holders had done more to reduce ‘piracy’ and to showcase copyright holders’ materials than this unproductive legal battle.

“Increasing the availability of licensed digital content is the best, most practical approach to meet consumer demand and protect copyright,” Malone said. “We have consistently said we are eager to work with the studios to make their very desirable material legitimately available to a waiting customer base – and that offer remains the same today.”

In an interview with TorrentFreak prior to the judgement this morning, AFACT executive director Neil Gane said that regardless of the decision, “the landscape has changed”. “In the three years since the case commenced,” he added, “legislators, regulators and courts around the world have recognized that ISPs must play a central role in preventing online copyright theft.”

Both iiNet and AFACT will hold press conferences this afternoon to discuss the decision.

Opinion/analysis to follow once the dust has settled.