news The Pirate Party of Australia has made a submission to the Federal Government recommending it reject the controversial Anti-Counterfeiting Trade Agreement (ACTA) signed this month by the European Union, despite the fact that Australia actually signed the deal in September last year.

ACTA is an agreement between a number of major countries which will establish international standards for intellectual property rights enforcement — setting up an international legal framework for targeting counterfeit goods, medicines and online copyright infringement. It will see a new international IP governing body to handle the area.

In the wake of the demise of the Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) in the US over the past month, following widespread protests, international attention has turned to ACTA, which many protestors see as implementing similar controls over the Internet as SOPA and PIPA. The European Union signalled its acceptance of ACTA this month, while Australia signed up to ACTA in September last year. A number of other countries, such as the US, New Zealand, Canada, Japan, Singapore and South Korea are also on board.

However, this week, the European Union’s key investor of ACTA (dubbed a rapporteur) resigned his post in protest over the signing, denouncing the lack of civil society participation in the development of ACTA and a refusal to take part in what he said was a “masquerade”.

In a media release today, the Pirate Party Australia noted it had filed a submission to the Federal Parliament’s Joint Standing Committee on Treaties’ Inquiry into ACTA (available online in PDF format). The wording of the submission is scathing for Australia’s participation in the agreement.

“Perhaps the most troubling aspect throughout the development of ACTA has been the opaque and clandestine nature of the entire process,” the organisation wrote. “Whilst the Department of Foreign Affairs and Trade [which is lead negotiator on ACTA] has stated that a certain level of confidentiality is required for trade negotiations, and while there is some ground to perhaps enable a certain degree of secrecy where complex issues may warrant negotiations in confidence, there is no conceivable rationale for the level of secrecy that the Department has maintained for what is essentially a copyright treaty.”

“The exclusionary approach by the Department – the sheer lack of public participation in an area of law that has such potentially large public interest issues – is especially troubling for the Australian democratic process, particularly where earlier leaked drafts contained especially draconian provisions. The secretive process directly contradicts the Declaration of Open Government that has placed primacy on principles of informing, engaging and participation.”

The Pirate Party pointed out that DFAT had not released submissions made to it by stakeholders, industry and consumer groups regarding the negotiation of the agreement and had also rejected applications for the submissions under Freedom of Information laws.

The Pirate Party highlighted the fact that developing countries such as India and Brazil actively opposed ACTA because of the threat to generic medicines which the countries relied on for their healthcare systems.

Some of the more specific concerns which the Pirate Party has in relation to the ACTA agreement include the fact that the agreement does not make any mention of the cultural rights of citizens, preferring to focus on the rights of intellectual property owners, that there were varying levels of agreement about what the value of damages should be in the case of those who have infringed copyright, that the privacy rights of those who have allegedly infringed copyright could be violated, and that the use of digital rights management clauses would make it “incredibly difficult” for legitimate purchasers of content to make backups of that content legally.

“The negotiations for ACTA were held in secret and excluded representatives of key stakeholders, particularly IT and consumer groups. This secrecy continues to this date, with submissions and other information regarding the Department of Foreign Affairs and Trade’s involvement in the negotiations remaining secret,” concluded the Pirate Party in its submission.

“Movie and music industry groups and representatives were granted exclusive access to draw up an agreement protecting their vested interests, with little to no regard to privacy or detriment to consumers and the public interest. This process of exclusion, opacity and protection of belligerent industries’ interests can only lead to one conclusion — the trade agreement is illegitimate and should be rejected on this reason alone. To accept this agreement is to condone the undemocratic process in which it was forged.”

“The Australian government is elected to serve the Australian people, not the interests of multi-national media and pharmaceutical executives.”

In a media release on 30 September, the Federal Government took a different view of ACTA, with Trade Minister Craig Emerson stating at the time that the agreement (which Australia had taken a “leading role” in the negotiation process to establish) “showed Australia’s determination to secure international cooperation to develop trade in the most innovative areas of the global economy”.
“ACTA builds on World Trade Organization standards to promote international trade in legitimate intellectual property, by elevating standards of enforcement,” Emerson said at the time. “This treaty will help stem the burgeoning global trade in counterfeit and pirate materials, worth many billions annually.”

Emerson said at the time that the treaty would support “market-oriented innovation” in Australia and other signatory countries by giving creators and exporters the confidence to promote their products overseas without fear of counterfeiting and piracy. “The treaty will also help stop the unwitting purchase by consumers of low-quality counterfeit and pirated material,” he said.
“The implementation of ACTA will not require legislative changes in Australia,” the Government’s media release at the time read. “Rather, trading partners will adapt their laws to the high standards of IP enforcement that already apply in Australia.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

opinion Over the past few months, I have alternately been appalled, disgusted, saddened and ultimately bored at the degree to which naked self-interest is ruling the ongoing debate about how Australia will deal with the issue of online copyright infringement (Internet piracy).

Now, there is no doubt that the debate has been a vibrant one. There have been strong opinions from multiple sides. There have been complicated legal, commercial and ethical arguments presented ad nauseum. There have been many speeches made, public discussion papers issued, off the cuff comments thrown into the ether and the overall entertainment factor has been extremely high; worthy, almost, of its own reality show on prime-time TV.

However, what has been lacking from the debate at its core has been any real consideration for the underlying factors underpinning the growth of Internet piracy and how they might be addressed. Unfortunately, but perhaps predictably, the major players in the debate — the ISP and content industries and the Government — appear to be almost purely engaging in this dialogue out of their own self-interests; nothing more, and nothing less.

Let’s take last week’s release of a discussion paper by a number of Australia’s major ISPs and representative group, the Communications Alliance, on the issue.

On the face of it, as many commenters agreed over the weekend, the paper sounds pretty good. It avoids unsavoury approaches to dealing with Internet piracy such as disconnecting users’ broadband connections, includes significant avenues for appeal and independent oversight and works within the boundaries of Australia’s existing law on a predominantly education-based approach to dealing with the issue. However, when you dig a bit deeper into the rationale underpinning the paper, it becomes clear it has broader aims.

Ask yourself: What does Australia’s ISP industry really think about the issue of Internet piracy? Well, the answer to this question is clear: It wants the issue to go away. Australia’s ISPs want their users to continue to funnel money into their revenue trough for broadband connections with big quotas, and they don’t want to be on the receiving end of lawsuits such as AFACT’s action against iiNet while they’re doing it. Australia’s ISPs primarily see the issue of online copyright infringement as being one between content producers and content consumers; they want no part of the whole shebang.

The discussion paper released last week reflects this belief. It positions ISPs as outside the cycle of online copyright infringement by having them passively pass on educational and warning notices to users whose activities will in turn be tracked by the content industry; then, when users don’t listen, the ISPs again step out of the way and pass their details back the other way. There’s also a limiting factor on how many notices they’ll pass on. It’s all quite neat and clean — and predictable.

The response from the content industry (film, TV, video game and music studios and distributors) has also been predictable.

Ask yourself: What does the content industry think about the issue of Internet piracy? Well, the answer to this question is also clear: It wants to hold onto existing business models. The content industry wants its consumers to continue to funnel money into its revenue trough, forking out for pay television, DVDs, sitting through ever-increasing amounts of advertisements on free to air TV, buying video games at full prices, buying whole albums of music and more. The content industry has a whole superstructure set up which has been custom-designed to part you from your money, and it doesn’t want to migrate to a new system.

Hence, the content industry primarily sees the issue of online copyright infringement as being one between users and ISPs. They can’t control what users download, but ISPs can, so they want ISPs to take responsibility for undercutting their existing business models. The content industry’s response to the ISPs’ discussion paper released last week reflects this belief. When the Australian Content Industry Group’s Vanessa Hutley says the proposal “falls short”, she means that there’s no responsibility in the ISPs’ model which would require them to take any enforcement action against their users.

Then there’s the Government.

Governments are a complex beast. Beset by a thousand different competing political and bureaucratic demands, Ministers such as Federal Attorney-General Robert McClelland are positioned at the heart of a huge spider web with a thousand different cords pulling on them simultaneously.

Consequently, they don’t pay attention to industry lobby groups such as the Internet Industry Association, Communications Alliance, Australian Information Industry Association, Australian Content Industry Group, Interactive Games & Entertainment Association and so on unless there is clearly an issue which the industry can’t resolve itself.

When this happens — as it clearly has in the case of online copyright infringement — the Government will normally order a public enquiry to get all sides of the story, and try to get the warring sides to sit down around a table to negotiate under its steely gaze. This is precisely what has occurred in this case as well. Closed door discussions about Internet piracy are being held by the Attorney-General’s Department, and a number of public consultations are under way about the issue of the Internet in general.

The Government primarily sees the issue of online copyright infringement as being one between ISPs and content owners. They want these two industries to sit down and work out the issue themselves. If this ultimately fails, the Government will be forced to devote resources to legislating on the matter — something which it wants to avoid.

Now, have you noticed something about all of these approaches? In all three cases, the prime actors (the ISPs, the content industry and the government) have avoided taking any personal responsibility for the issue. None of the major three sides of Australia’s Internet piracy debate fundamentally believe that the issue is theirs to resolve. They want someone else to do it for them.

What this has meant for the debate is that it has constantly gone around in circles, with each side of this odious tri-pointed star constantly evading responsibility and passing the buck. In addition, they have each avoided discussing the real issues underlying Internet piracy.

Now, there are two further parties in the debate which have remained largely silent on the issue of Internet piracy so far: Those who actually create the content — rather than distribute it — and those who consume it. I’m speaking, of course, about artists and the general public.

I was struck recently by a comment which Greens Senator and Communications Spokesperson Scott Ludlam made on this issue in a post on Delimiter. Ludlam wrote:

“This is a complex and opaque clash of commercial self-interest, with old media conglomerates seeking to retain their incumbency in a world which doesn’t need them as much as it used to. Amazing how little we hear from the artists and creative people themselves about how they’d like to be paid for their work.”

That’s right — real artists! What a shocking concept!

As Ludlam rightly points out, it is not film and TV directors, producers or actors, musicians, video game development houses or any other form of artist calling for the issue of Internet piracy to be resolved. These people — artists — do not really care about the issue. Their main concern is that they are allowed to produce their art without gross commercial interference, and that art gets distributed to consumers in a way which allows consumers to get access to it and at a reasonable enough rate of return to allow them to continue making it and even profit a little.

Art has other aims than just profit, although profit is usually mixed in there somewhere. Strange to hear this said out loud, isn’t it?

It is a similar situation with the general public. All Joe Citizen wants is to be able to get whatever content they want, at the same time as everyone else, on whatever device they want to be able to view it on, and at a reasonable price that they can afford to pay. Sounds pretty simple, doesn’t it? The average Australian couldn’t give two hoots about content industry groups, record labels, film and TV distribution networks, television stations (pay TV or otherwise) or video game retailers. What they want is the content, plain and simple.

I was struck by a comment by ABC managing director Mark Scott, who said (as reported by Mumbrella) in a recent speech that the ABC’s iView platform had demonstrated that there is a strong and growing online audience for “great content, well-curated and delivered in an accessible format”. “Our research suggests that when audiences discover iView, they love it — they use it, they keep coming back to it,” Scott added.

Precisely. When the barriers to consuming content are taken away (as they have been on the ABC’s stellar iView app), content consumption explodes. I personally use iView almost every day — on my PC, on my media centre, on my laptop, on my iPad, on my iPhone — anywhere. Sometimes the content isn’t great, but it’s so readily available that I consume it anyway.

Australia’s love affair with piracy is not an effort to gyp content creators of their rightful remuneration for that content — it’s a simple attempt to get at content which is too hard to consume otherwise. Once again, audiences want to be able to get whatever content they want, at the same time as everyone else, on whatever device they want to be able to view it on, and at a reasonable price.

Now the thing to understand about both artists and consumers is that they are absolutely the key stakeholders in this debate — everyone else are just middlemen. In addition, they don’t have many linkages with the other three groups who are driving the debate.

Content consumers primarily see their main relationship as being with artists directly — the film buff who follows a director’s career, the music fan who buys all of a band’s albums, the Gears of War fan who follows every comment Cliffy B makes in public. And on the flipside, the artists see their main relationship as being with their fans — talking to them, producing content for them, performing for them. Neither places ISPs, content industry groups or the Government as stakeholders of high importance in the way they consume content.

And yet it is these middlemen who are driving the debate about online copyright infringement in Australia, who are negotiating behind closed doors on the issue, suing each other in court, and threatening to legislate about it. For self-interested reasons.

When artists and consumers themselves get involved in the debate, a remarkable thing tends to happen: Self-interest largely disappears from the picture. Great art is never created from self-interest. It can only be created when an artist is driven by their creative impulse, and applies discipline to develop their talents. Great art is never consumed from a sense of self-advancement. It is consumed with wonder, for entertainment, to take oneself away from our normal lives. The commercial agenda is present but rarely the most important factor — it is usually the middlemen who tend to bring it into the picture — not the artists, nor the consumers of that art.

Other things happen as well, when artists and consumers take the online piracy debate back into their own hands. Video game developers create their own publishing platforms which users prefer to piracy. Artists call for their fans to pirate their albums rather than buy them from greedy music labels — and then start publishing them online themselves, without the assistance of intermediaries. Internet video platforms arise to stream content when, where and how consumers want. And more. A direct connection is made between artists and consumers without middlemen.

Now, I’m not saying every middleman in Australia’s online piracy debate is purely motivated by self-interest. Some ISP leaders, like iiNet’s Michael Malone and Internode’s Simon Hackett, also have altruistic motives and do care about their customers. And the same can be said of some figures within the Government and content industries.

But what I am saying is that we are letting middlemen rule a debate which should be rightly ruled by Australian consumers and artists themselves. Let’s set self-interest aside from the issue of online copyright infringement and ask consumers and artists what they want. Now that would be the real definition of an “industry solution”.

Note: To show that I am serious about my comments in this article, I’m licensing this article as Creative Commons (no derivatives or commercial uses). This does not include the images used in the article, on which I do not own the copyright. Please replicate this article as you see fit under these terms. Content production is not always about making money.

blog Well, that was short-lived. The anti-piracy plan mooted by many of Australia’s ISPs last week has already been reportedly knocked back by several major organisations representing the content industries. The AustralianIT reports today that Australian Content Industry Group spokeswoman Vanessa Hutley had this to say about the plan (for the full article, including comment from Foxtel, click here):

“ACIG does not think the scheme proposed by the Communications Alliance and its members creates a balanced process and it falls well short of the expectations we had had for an open, balanced and fair solution.”

Well, she would say that, wouldn’t she. As so many readers had predicted, the content industry does not believe the ISPs’ plan goes far enough. Aaaaaand … we’re back at square one. Or is this the beginning of a beautiful negotiation?

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

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

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

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

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

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

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

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

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

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

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

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

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

opinion The anti-piracy scheme proposed by the ISP industry this afternoon as a response to online copyright infringement through platforms like BitTorrent opens the door for content owners to start taking hundreds of thousands of Australians to court for minor offences such as downloading a handful of films or TV episodes.

In general, the scheme — detailed in full in this discussion paper (PDF) — has much to like about it. In putting the proposal together, the ISP industry has taken great care to avoid many of the really draconian punishments which have been implemented internationally and proposed in Australia over the past few years.

Unlike in New Zealand and France, the scheme does not proposed that Internet users’ broadband connections be shut off after repeated piracy offences. This idea is simply unpalatable in a society which depends daily on access to the Internet for access to basic services such as banking and dealing with all levels of government and business — to say nothing of Australians’ personal lives. It is also, of course, incompatible with the current Labor Government’s vision of universal fast broadband access.

In addition, the scheme avoids the noxious idea that ISPs would simply hand over the details of their customers upon receiving copyright industry demands. That idea represents a clear invasion of privacy and an abrogation of the ISPs’ responsibilities to their customers — not to mention a lack of due legal process.

Furthermore, there are a number of controls placed upon the process as a whole. Copyright owners must be accredited to join it, with the pre-approval process featuring an independent audit of their copyright infringement detection technology. On the Internet user end, Australians affected by the scheme will be given time to query warning notices received, dispute them, or seek further legal notice to protect their own rights.

I like the focus on education; although, it could be argued, education is a two-way process, and the content industry should perhaps be educated simultaneously on how to efficiently and painless make their content available online in the first place. It’s something users have been attempting to do for years.

And I like the fact that a formal legal process is involved — where, should copyright owners want to pursue action against individual users, they will be forced to do so through the courts, which is the appropriate venue for corporations who feel they have been aggrieved by consumers. The legal concept of the need for “evidence” — shocking, I know, in these fast-moving times — will be applied to their claims that certain Internet users have infringed copyright online.

The damage as a whole will be limited — with ISPs committing to each only process 100 maximum infringement notices each month during the 18 month trial period — and the ‘reset’ mechanism, by which users’ register of copyright infringement notices will be set back to zero if no notices are received during a 12 month period — is another worthy control factor.

However, there is one disturbing fact inherent to the scheme proposed today which I personally believe requires a deal of serious consideration.

The scheme as proposed contains a great deal of soft incentive for users to stop pirating content online. Gentle, repeated warnings, educational notices, an overall awareness that Big Brother is ‘watching’; the ISPs’ anti-piracy scheme contains all of these components, and I do expect them to have some impact on the levels of Internet piracy in Australia, if the scheme is enacted as proposed.

However, the scheme also overtly proposes a new and extremely punitive approach to dealing with repeat offenders which I find disturbing.

The ultimate punishment laid out by the ISPs doesn’t seem so bad: You won’t have your Internet connection cut off, and your actions won’t be reported directly to the authorities. Instead, all the ISPs are promising is that they will cooperate with legal demands from the content industry for specific users’ information.

This might not sound all that bad: Until you consider what the film and TV studios can do with that information.

In the US, the ability to source alleged Internet pirates’ details through mass subpoenas has resulted in the content industry sending hundreds of thousands of residents letters demanding that they settle threatened lawsuits for several thousand dollars, or else face fines imposed by the courts for amounts, in some cases of up to $150,000.

Upon receiving such a letter, Internet users face a number of undesirable options. If they simply front up and pay what the film, TV and music industries demand, they’re out of pocket for amounts averaging $3,000 — simply for downloading a piece of content which might have cost $30 to buy as a brand new DVD.

If they resist this legal approach, things quickly get worse. It’s a common tactic for the content owners to immediately up the amount that they’re demanding — for example, from an initial $4,000, to $7,000 or $8,000, in a number of reported Recording Industry Association of America cases.

And they can also face a higher social cost. Wired points out in a comprehensive article on the subject that many of the claimed pirated works are sensationalist in nature — such as the film ‘Nude Nuns with Big Guns’. Would many Australians want to be dragged into court for illegally downloading a slightly unusual piece of pornography? No. Especially if it might cause problems with their relationship or reputation. There is an inherent incentive to settle — despite the fact that the settling cost far outweighs the actual cost of the crime — again, something like $30 per offence.

If you do decide to fight the content industry’s legal threats, things can get pretty insane pretty quickly. In several cases decided in the US, juries have awarded amounts as high as $80,000 per song shared on the Internet. That’s right — $1.92 million for sharing an album with 24 tracks online. $1.92 million in fines. For an album which would probably cost no more than $20 to buy. Does that seem reasonable? Not really.

I’m sure that courts in Australia wouldn’t make such extreme judgements — the US legal system is known to be pretty insane. But you do have to wonder what our local legal system would consider reasonable. Would it levy fines of a few thousand dollars, perhaps up to a few tens of thousands of dollars, for online copyright infringement? What about community service and a public apology? Or could the court rule that infringers should have their Internet cut off for a while? I’m not a lawyer, but it all seems entirely likely.

This is the future which Australia’s major ISPs — with the notable exceptions of cut-rate ISPs TPG, Dodo and Exetel — have just compulsorily volunteered their customers for. In putting forward this scheme, the ISPs have basically proposed that they take absolutely no role in defending their customers from an entire industry which has a comprehensive and well-documented history of hugely unjustified lawsuits against customers who have only committed minor offences.

And before you comment that it won’t happen, remember that it already is. October, it was revealed that a new company — named Movie Rights Group — had approached every major Australian ISP seeking information on users who had allegedly infringed copyright online, initially seeking the details of some 9,000 Australians who it claimed had downloaded the film Kill the Irishman. There were plans to broaden the company’s efforts to other films — and MRG was planning to use the same threatening legal letter approach seen in the US — although the organisation’s future is now in question.

The most ironic thing about this issue is that it should be obvious by now that legitimate commercial models for Internet content exist. In 2011, the music industry is suing less people as it’s making an absolute mint through platforms such as Apple’s iTunes. Digital book publication is booming through Amazon’s Kindle store. And in the US, the incredible success of movie and TV on demand platform Netflix has demonstrated starkly how much Internet users will spend — a lot — if they are able to pay for whatever online content they want, when they want to.

In the face of such an evolving and rapidly growing economy for digital content, the actions by Australia’s ISPs in proposing an anti-piracy model that puts their loyal customers in the hands of a pack of voracious legal wolves constitutes nothing less than impatience and corporate cowardice. If the ISPs were prepared to hold on for a few years, no doubt the evolving digital economy would largely resolve the piracy problem once and for all.

The fact that they are not willing to do so indicates a stunning lack of loyalty to the customers who have earnt them billions of dollars in revenue over the past several decades.

news A coalition of most of the nation’s major ISPs has proposed a scheme for handling Internet piracy which would see Australians issued with warning and educational notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if they keep on pirating content online.

The coalition includes Telstra, Optus, iiNet, Internode and Primus, but not TPG, Dodo or Exetel. It is working on collaboration with network equipment manufacturer Ericsson and industry groups the Communications Alliance and the Internet Industry Association.

In a statement released this afternoon by the Communications Alliance, the group noted that the scheme would require ISPs to forward “education and warning notices” to customers whose broadband connections have been detected undertaking activity which “might” infringe copyright laws. Once a customer had been forwarded three warnings and one education notice, ISPs would send what is terms a “discovery notice” to the account holder, warning them that they have apparently failed to address issues set out in the previous notices and their details may be subpoenaed by the copyright holder which had filed the complaint.

The ISP will, at that time, also notify the copyright holder that the Internet user concerned had failed to address the issues of online copyright infringement. The copyright holder may then seek to apply for access to the Internet user’s details and identity through a subpoena or ‘discovery’ application directly with the ISP.

“Should the ISP be served with a valid preliminary discovery order (or subpoena), the ISP will be required to comply with the order, which may require the ISP to disclose the account holder’s details to the rights holder,” the ISPs noted in a discussion paper proposing the scheme. The paper is available in full online (PDF). After they had obtained Internet users’ details, copyright holders would then be able to take legal action directly against the users.

The scheme does not provide for the termination of Internet user’s broadband access, not for any action to be imposed on customers directly by ISPs; in addition, the ISPs notes that it gives consumers the right to appeal warning notices.

In Communciations Alliance’s statement, the organisation’s chief executive John Stanton described the initiative as a positive step by ISPs to address what he said was “a complex and contentious set of issues that society had been struggling with for years”.

“We believe the Notice Scheme can greatly reduce online copyright infringement in Australia, while protecting consumer rights, educating consumers about how to address legal online content and helping rights holders to protect their rights,” Stanton said. “Equally important is the need for Rights Holders to ensure that consumers have access to legal and affordable content online, to reduce the motivation to source content in ways that might be illegal.”

The ISPs are proposing that the scheme would be undertaken on a trial basis over an 18 month period; following this period, an “independent evaluation” would be conducted into its effectiveness, including examining whether it produced a real change in consumer behaviour, and whether it should be continued in its initial form or modified for improvement.

Stanton said the proposal by ISPs would require further consultation with Rights Holders, consumer representatives, the Federal Government and the broader ISP sector before full details and an implementation timetable could be finalised. “We look forward to continuing the discussions with Rights Holders, consumer representatives, the broader ISP community and the Federal Government, then to launching an agreed scheme that is that is efficient, fair and cost-effectivefor all parties, particularly consumers,” he said.

The proposal of the scheme comes as the Federal Attorney-General’s Department has recently been holding talks between content owners and ISPs over the issue of online copyright infringement. However, the talks have been held behind closed doors and few of the parties involved have been willing to reveal what was discussed.

The ‘subpoena’ approach to dealing with online copyright infringement has also been a subject of great debate over the past few months in Australia. The approach is one proposed by a new organisation, Movie Rights Group, a new organisation which was set up in Australia last year with the aim of protecting the copyright rights of content owners in the film industry. In mid-October it was revealed that MRG had approached every major Australian ISP seeking information on users who had allegedly infringed copyright online, initially seeking the details of some 9,000 Australians who it claimed had downloaded the film Kill the Irishman.

However, since that date, Movie Rights Group’s website has been shut down, and the organisation’s vice president of sales and marketing has left the organisation.

Opinion/analysis to follow in a separate article.

news The website for controversial anti-piracy organisation Movie Rights Group has inexplicably vanished from the Internet and its vice president of sales and marketing has quit, leading to speculation that the organisation has been shut down for good.

MRG is a new organisation which was set up in Australia last year with the aim of protecting the copyright rights of content owners in the film industry. In mid-October it was revealed that MRG had approached every major Australian ISP seeking information on users who had allegedly infringed copyright online, initially seeking the details of some 9,000 Australians who it claimed had downloaded the film Kill the Irishman.

At that stage, the company’s then-vice president of sales and marketing Gordon Walker told Delimiter at the time, there were plans to broaden the company’s efforts to other films.

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

The website had previously featured a prominent notice informing visitors that one of its chief services was settling lawsuits with Internet users who had allegedly infringed its clients’ copyright. However, Reddit users noted in the past several days that the organisation’s website had disappeared from the Internet.

In addition, Walker, who had acted as the company’s only known spokesperson, has updated his LinkedIn profile to note that he no longer works for the company as at November and was now a small to medium business development business consultant based in Brisbane. Walker has not responded to an emailed request for comment on the issue.

The disappearance of MRG’s website and Walker’s departure from the company have come after extensive press coverage on the company and its founders. In addition, national broadband provider Exetel has signalled it may modify its core business systems to make it more difficult for anti-piracy organisations such as Movie Rights Group to target its customers for allegedly illegally downloading content through platforms like BitTorrent.

opinion/analysis
Do I think Movie Rights Group has shut down permanently? I’m not sure. The situation is clouded at the moment. With no easy way to get in touch with the rest of the company’s owners or staff, and no real knowledge of what’s happened, I guess we’ll have to wait and see what chips may fall from this one. One thing I do know, however, is that websites don’t just disappear from the Internet for no reason.

If you do know what has occurred at Movie Rights Group, please feel free to use Delimiter’s anonymous tips line.