Copyright experts demand “termination” piracy code

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

83 COMMENTS

  1. It’s easier to ban, block, litigate, sue, stand-over, threaten, demand and extort, than to change a business model.

    Ubiquitous, inexpensive access to content in a timely manner would reduce so called copyright abuse to fringe margins. They know that. We know that. But the addict cannot kick it’s habits.

    So we keep going through the motions, over and over again.

    • This argument that if it was available online copyright infringement would cease is BS. There may be some who would pay to access the content. I am betting the majority would keep getting what they can for nothing and have another excuse for do so. Most people who download movies music and games rather than paying for them, and I know lots, do so because they can and there are no consequences.

      • Tv’s the exception, I know people who download shows, because they cannot get them in Australia for a period after. I actually asked the question, if it was released within the week, would you download, most said no, unless the time wasn’t convienient. The ability to ‘time shift’ can fix this too.

        some said yes, maybe the way to beat them is to release it online, in segments, with thoes ads that show up at the start of each, like on some news sites. They could read your IP and pick from local stock what you get.

  2. No matter how much you negotiate; no matter how much you compromise; no matter how much you approach them in good faith; no matter how much ground you give up, these trolls will always return to exactly the same position, and demand exactly the same thing.

    The fact is that the Australian Copyright Act already allows for termination of repeat infringers. Section 116AH, which describes the conditions carriage service providers must meet in order to qualify for “safe harbour” protection, includes this:

    1. The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.

    The problem the copyright troll industry has is that by law, nobody is an “infringer” until they’ve been found guilty of infringement; nobody can be a “repeat infringer” unless a court has, on multiple occasions, made a finding against them.

    The copyright troll industry wants to end-run that legal protection, so that they can label someone as an infringer or a repeat infringer by merely making an allegation. No protection for the innocent, no standard of proof, no qualified investigation. Just a finger-pointing exercise, then your internet access gets cut off (along with the internet access of everyone else in your household, regardless of whether they’re alleged infringers too).

    What they want is deeply unjust.

    But they’ll keep arguing for it, and keep the issue before the courts, and keep lobbying MPs, and keep harassing ISPs, and keep suing end users until they get it. It’ll never end. There is no compromise. Giving them 90% of what they want isn’t good enough, they want 100%.

    – mark

    • “The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.”

      Oh yeah, that was the policy that Michael Malone testified (under oath) was in his head (rather than being written down) in iiNet v AFACT. Court said that was good enough. That provision works real well, doesn’t it?

      And who’s proposing an “end to legal protections”? The authors of the paper the subject of this article don’t argue for that – all they say is that ISPs and copyright owners should get on and put together a code of practice to deal with the issue of repeat infringers, as the law intended, when it was drafted 7 years ago.

      • “all they say is that ISPs and copyright owners should get on and put together a code of practice to deal with the issue of repeat infringers”

        This has been tried. How do you “put together” a code of practice when the industry representatives do not want a legal process, they want a simple way to turn the tap off, for anyone “presumed” to be guilty of infringement.

        Your argument assumes there is fair balance to be struck. The industry has proved repeatedly that there is no fair balance. No due process. Just a need to demonise end consumers, whilst the industry itself operates a double standard.

        • “Your argument assumes there is fair balance to be struck.”

          No – the law assumes that to be the case.

          But you’re right – no balance has been struck. Copyright owners want to take action against pirates with a minimum of fuss and ISPs want to pretend they have nothing to do with piracy whilst at the same time throttling bittorrent traffic and reaping revenues from high use data plans used predominantly for infringement.

          • “Copyright owners want to take action against pirates with a minimum of fuss and ISPs want to pretend they have nothing to do with piracy..”

            This is exactly why you miss the point. A “minimum of fuss” is not just to ignore the law; Copyright owners want an expedient way to control whom has content, and when. Just as they have always done.

            This is why there is no “code of conduct now”. If it was just that easy, we would have one by now.

            It’s not. The industry will keep sending in the goon squads until they get precisely what they want. The names change, but the message is the same.

            You will comply with whatever we say you are to comply with. End of story.

            You can’t negotiate in that atmosphere.

          • When you write “pirates” instead of “infringers” I read “I have no sense of perspective and would like to demonise one side of the argument”.

      • ISPs tried that in 2007, engaging rights holders in negotiations.

        The rights holders cut off their participation in the talks, and switched to the campaign of intimidation and legal tactics that lead to the iiNet suit.

        Bad faith. They aren’t interested in negotiation, only capitulation.

        • “The rights holders cut off their participation in the talks, and switched to the campaign of intimidation and legal tactics that lead to the iiNet suit.

          Bad faith. They aren’t interested in negotiation, only capitulation”

          Oh come on! You’re kidding aren’t you?

          The only thing that has brought about any change in ISP attitudes towards this issue has been legal action. It is only now that we are edging towards a high court finding that ISPs do have some responsibility for piracy on their networks that the IIA has proposed a “copyright code of practice” and iiNet have also proposed a plan where they will happily pass on user details of allaged pirates.

          Before the iiNet proceedings, ISPs had absolutely no incentive to do anything – which was demonstrated by their complete inaction on this issue.

          • “Before the iiNet proceedings, ISPs had absolutely no incentive to do anything – which was demonstrated by their complete inaction on this issue.”

            Ignoring that Copyright holders have no incentive to negotiate. It takes two to tango.

            You have not once suggested that copyright holders need to negotiate, just that ISPs must comply because they’re just filthy copyright infingers too.

            That sounds very familiar.

          • It’s like asking the road authority to setup the roads so people are speed restricted on it or putting them to blame for cars speeding.

          • “You have not once suggested that copyright holders need to negotiate, just that ISPs must comply because they’re just filthy copyright infingers too. ”

            Sorry, no – I didn’t mean to come across that way. I think the answer lies in between the two extremes proposed on this issue (as is usually the case in these situations).

            1. Content owners need to roll out online services – there’s no doubt about that. But they have a right to optimise market conditions before doing so – that only makes sense. You don’t start selling ice cream in a town where everyone else is giving away ice cream for free.

            2. Whether it suits them or not, ISPs are best placed to take action against the widespread infringements that are going on across their network + arguably, they’re the only ones making any real money from it. P2P has been the killer app for fixed broadband revenue income (due to volumetric pricing)

            3) The answer is a plan that addresses both of these issues ie. ISPs have to help take action against pirates and content owners have to bring legitimate online content services to the market place.

            voila!

          • 1. Content owners need to roll out online services – there’s no doubt about that. But they have a right to optimise market conditions before doing so – that only makes sense. You don’t start selling ice cream in a town where everyone else is giving away ice cream for free.

            But that isn’t correct. Look at the music industry. Piracy used to be everywhere now hardly anyone pirates music because they can buy it for so cheap off services like iTunes.

            2. Whether it suits them or not, ISPs are best placed to take action against the widespread infringements that are going on across their network + arguably, they’re the only ones making any real money from it. P2P has been the killer app for fixed broadband revenue income (due to volumetric pricing)

            Not true. My parents had a 12Gb data plan. My brother downloaded an update for his computer games via steam and blew the quota. So my parents have upgraded to a 100Gb plan. Not because they need more allowance to download illegal movies. But so they don’t blow there quota from game/windows updates.

            Even myself as a gamer can blow 20Gb of data on downloading 2 games very easily. And other services like xbox live being able to buy/download games. Hell even iPhone games now can weigh in at 1Gb+

            Or buy some of that music from iTunes at 5mb a song, grab a whole album sure it’s only 150mb but it adds up over the month

            3) The answer is a plan that addresses both of these issues ie. ISPs have to help take action against pirates and content owners have to bring legitimate online content services to the market place.

            ISPs don’t have to take up action against pirates. All they should be having to do is follow a court order that has been proven that Little Johnny has been downloading stuff and breaching copyright. I don’t think they should be preempting anything or assisting in cutting people off from allegations only

          • An allegation of infringing copyright is just that, an allegation. Our legal system requires that an “infringer” be found guilty by a court. The legal system cannot allow a ‘copyright holder’ to point their finger at whomever they wish and accuse someone of being an ‘infringer’ or ‘pirate’. That is defamation.

            On the other hand, ISP’s should not be handing over personal details of their customers without a court order, as this is a breach of the privacy act.

          • “Sorry, no – I didn’t mean to come across that way. I think the answer lies in between the two extremes proposed on this issue (as is usually the case in these situations).”

            There is only one extreme, which the Copyright holders hold. The other is a legal concern. ISPs should damn well protect privacy. We have an Act for that.

            What the Copyright holder’s want, again, is a simple tap that they control. It’s always been about control. Which is why they go after the pirate. Because they can’t control (and thus monetise) that market.

            They aren’t interested in negotiation.

            “But they have a right to optimise market conditions before doing so – that only makes sense. You don’t start selling ice cream in a town where everyone else is giving away ice cream for free.”

            Huh? There is an established market. The demand is real. It’s too late to decide to cut off access to icecream for a set of consumers because they happened to find an alternative ice cream source.

            When you’re already free-falling, it’s too late to decide if you want to jump or not.

            The music industry is an example of where, eventually, services like iTunes (an example of the ubiquitous, low cost model I mentioned earlier) have rendered music pirating as a fringe act.

            And they, too, kicked and screamed. Because it meant reducing control (and thus losing some of their bloated profit margin avenues).

            “The answer is a plan that addresses both of these issues ie. ISPs have to help take action against pirates and content owners have to bring legitimate online content services to the market place.”

            ISPs should have no part of establishing a legal claim of copyright infringement. They cannot be both the law, and the supplier. This is the entire reason safe harbour type provisions should exist.

            Copyright holders want to remove the existing laws, and become the law. Decide whom will consume and when. Because if they had such an iron tight right, they’d have no issues using the courts system to go after supposed infringers.

            So far? It’s been the iiNet case, and that’s about it. Not the actions of people concerned about copyright, so much as lost revenue (imagined as is often the case, or otherwise).

          • I’ll guess we’ll have to agree to disagree.

            I think ISPs do have a role to play in mitigating the level infringements that are occurring on their networks – you don’t.

            The High Court is deciding this very issue, so I’m happy to go by whatever they say.

          • “I think ISPs do have a role to play in mitigating the level infringements that are occurring on their networks – you don’t.”

            It’s not whether I think they do, or don’t. Our laws are primarily based on innocent until proven guilty and the onus is on the plaintiff to provide evidence, and legal system to ensure that is upheld; Copyright fits into that.

            It’s not the ISPs responsibility to become the Law in this regard. It’s not Judge Dredd. It is responsible, in following the law, as are most any citizen or resident. Don’t think Mark has said otherwise. I know I haven’t. ;)

            It is the responsibility of the Industry bodies to prove, and use due process; to date (as Mark has repeatedly stated) this just isn’t happening. They aren’t trying to fit into the law, they are attempting to have the law rewritten to fit them.

          • “They aren’t trying to fit into the law, they are attempting to have the law rewritten to fit them.”

            No they’re not. They’ve gone to court because they say iiNet authorised the infringement of their copyrights. They are asking the court to uphold their understanding of the lae as it applies to the facts at hand. That’s their prerogative.

          • So someone looks up childporn it’s the ISPs fault. This is what you are saying.

          • “So someone looks up childporn it’s the ISPs fault. This is what you are saying”

            If it was reported to the ISP that a certain IP address on their network was downloading it specified times and they refused to do anything… them there are grounds for concern about the ISPs behaviour. Protecting the person would be enablement.

          • Noddy – They would still need a court order imo to block the site or do something to the user. Just because it’s reported doesn’t mean they can legally do anything.

          • Also Mark Newton knows what he is talking about and has industry experience.

            What experience do you have ‘yes’ to backup what you are claiming?

          • sure – Mark has been working for one particular side of this argument for ages.

            I’ve been observing this issue for ages (probably like eveyone here). I find it interesting. I don’t work for an ISP or a movie/music company though – so you’re right, I’ve no vested interest.

          • “The only thing that has brought about any change in ISP attitudes towards this issue has been legal action.”

            I’m still trying to work out why the ISP’s should care?

            My bet is that if you were a grammar and spelling nazi you would be trying to make Australia Post responsible all the miss spelt letters they deliver unless they implemented a “3 strikes, no more postage” scheme.

      • that was the policy that Michael Malone testified (under oath) was in his head (rather than being written down) in iiNet v AFACT. Court said that was good enough. That provision works real well, doesn’t it?

        Well, it’s hard to say, because the content owners haven’t been upholding their side of the obligations written into the Act.

        What’s supposed to happen is that content owners who suspect infringement should apply to the Federal Court for a discovery order (which is a formality – just lodge some paperwork); The ISP responds to the discovery order with the personal details of the suspected infringer; Then the content owner applies to the court for a judgement of infringement against the suspected infringer.

        They’ve never done that.

        Not once.

        If they had done that, and they’d received multiple judgements against the same infringer, then they could trigger the repeat infringer policy.

        That’s how the Copyright Act is supposed to work.

        If that had ever happened, i.e., if the rightsholders had done what the law expects them to do, then Michael Malone would need to make sure that he had a written policy, and that iiNet correctly implemented it. But it has never gone that far, because rightsholders have preferred to harass ISPs with ambit claims about infringement, without even once asking a court to uphold them.

        Thus far, the closest anyone has come to implementing that process is the much maligned Media Rights Group on the Gold Coast. They’re actually playing by the rules, applying for orders to force ISPs to divulge personal details of suspected infringers. But even they haven’t obtained judgements against the people they identify yet.

        The fact of the matter is that rights holders don’t need to campaign for repeat infringer disconnections, because the law already says that repeat infringers need to be disconnected, provided rights holders go through the process required to obtain judicial review. They don’t want to go down that path, because it’s much cheaper for them to engage some third party to spam-cannon unproven allegations of infringement at ISPs then send press releases about how the ISPs aren’t doing what they’re damn-well told.

        But don’t let that obscure the fact that the rights holders have never, ever, ever, not even once attempted the path that the law lays down for them to get the result they keep saying they want.

        – mark

        • Sure – that’s more or less correct. But of course given the widespread, non-commercial infringement that’s going on, that’s an extremely expensive and ultimately futile strategy to follow for every single pirate. Getting a subpoena and discovery order is much more than “just lodging some paperwork” – it’s a highly time consuming and very expensive process that is ill suited to the scale of infringement that takes places over AU ISPs networks.

          I think Parliament recognised this, envisioning an industry code that ideally would have dealt with this incongruence.

          But of course, when it comes to discussion about “upholding their side of the obligations written into the Act” – we’re about to find out (well early next year, anyway) what those obligations are vis a vis the High Court’s decision on that very issue.

          • Sure – that’s more or less correct. But of course given the widespread, non-commercial infringement that’s going on, that’s an extremely expensive and ultimately futile strategy to follow for every single pirate.

            Is it? I don’t think anyone has any idea. Would it be more expensive than what they’ve spent on the iiNet case?

            It seems to be good enough for them in the US, where they’ve been going after individual downloaders for years.

            That’s what stirs me up about this:

            If you wanted to mount a case in good faith that the present system didn’t work, I’d have thought that you’d need to go through the motions of complying with the present system, clause by clause, and use the results to show where it failed. Then you’d lobby for legislative changes to fix those failures, and you’d get happy.

            Instead, the rights holders have launched a phenomenally expensive legal action against an ISP, and they’ve lost. Then they’ve appealed, and lost again. Then they fought to avoid paying iiNet’s costs, and they lost there too. Now they’ve appealed to the full bench of the High Court, and I’m pretty sure they’ll lose there too, unless you believe the unlikely notion that every single one of the lower court judges that’s looked at the case so far was wrong.

            So far it’s taken them three years. Three years of solid, unmitigated failure, and endless millions in legal bills.

            You’d think that if they were really serious, then in parallel to that, at least once, they’d make a good-faith effort to see if the currently legislated system actually worked.

            But they haven’t. They’re not behaving in good faith. They’re making exactly the same arguments they’ve been making since 2008, even though the courts have said time and time and time again that they’re wrong. When they don’t like the umpire’s decision they go crying to the press and send lobbyists in to Ministers’ offices to get the rules changed, even though during all these years the one thing they’ve steadfastly failed to do is to demonstrate that the existing rules need to be changed.

            Getting a subpoena and discovery order is much more than “just lodging some paperwork”

            No it isn’t. There’s an expedited discovery process in the Federal Court Rules of Civil Procedure. It used to be an application for an order under rule 15A, but they’ve changed it to a Preliminary Discovery Order under rule 7.22 this year. http://www.comlaw.gov.au/Details/F2011L01551/Html/Text

            Until the Media Rights Group came along earlier this year, there had not been one single application, ever, for rule 15A discovery. What does that say to you about their seriousness with respect to acting in good faith?

            – it’s a highly time consuming and very expensive process that is ill suited to the scale of infringement that takes places over AU ISPs networks.

            How do we know? It’s never been tried.

            I think Parliament recognised this, envisioning an industry code that ideally would have dealt with this incongruence.

            That’s a complete red herring. The legislation that the Parliament enacted allows for disconnection of repeat infringers without an industry code.

            Read section 116AH: The code is optional.

            But of course, when it comes to discussion about “upholding their side of the obligations written into the Act” – we’re about to find out (well early next year, anyway) what those obligations are vis a vis the High Court’s decision on that very issue.

            We are. And I fully expect that AFACT will be deeply unhappy with the outcome, and will have a big cry-fest about how hard-done-by they are, and will go running off to the press and the Minister to ask for legislative changes to do exactly what they’ve always said they want to do, which is to have disconnection based on unproven allegations delivered to ISPs in a spreadsheet without preemptive judicial review.

            – mark

          • “… unless you believe the unlikely notion that every single one of the lower court judges that’s looked at the case so far was wrong.”

            Of course, the appellate decision was by no means clear cut because of course not all judges agreed. Indeed ultImately, it may prove to have been a pyrhhic victory for iiNet.

            “If you wanted to mount a case in good faith that the present system didn’t work, I’d have thought that you’d need to go through the motions of complying with the present system, clause by clause, and use the results to show where it failed. Then you’d lobby for legislative changes to fix those failures, and you’d get happy.”

            But isn’t that exactly what AFACT are doing? They believe iiNet had a legal responsibility to take steps to mitigate piracy on their network. I’m unsure how attempting to pursue what one considers to be one’s legal rights in court (as AFACT are doing) can be considered to be acting in bad faith.

            “So far it’s taken them three years. Three years of solid, unmitigated failure, and endless millions in legal bills.”

            Sure – they’ve certainly lost proceedings thus far. It may be a case of lost a couple of battles but may win the war. And of course you’ve now got the industry body saying they’ll introduce a code and iiNet is asking for the Govt to get involved. The court has also started to give guidance on what evidence is required to be presented to an ISP to demonstrate infringement for the purpose of activating the repeat infringer policy. Small steps, but I don’t think an “unmitigated failure” is correct – whatever happens, ISPs will have to back down from their hear no evil, see no evil, sitting on hands approach of three years ago.

          • But the ISP monitoring what people do or what ever would be the same as AusPost opening everyone’s mail and ensuring it’s all legal or Telstra line tapping everyone’s phone to again ensure everything said is legal.

            It’s not there role/place to do this. It is up to the police to get a court order/warrant to search/line tap etc.

            The current system as Mark has said gives the copyright holders the legal pathway to get more information/data on a copyright infringer just like the police would get a warrant. But they haven’t gone down this path and would rather side step all that. It’d be like the police arresting someone because they thought the person had been posting illegal things only because they saw the packaging, rather than getting a warrant to open the packet etc.

          • No one has suggested ISPs actively monitor customers .

            AFACT havee gone to court to enforce their interpretation and application of the law – I don’t think they’re side-stepping anything.

          • Of course, the appellate decision was by no means clear cut because of course not all judges agreed. Indeed ultImately, it may prove to have been a pyrhhic victory for iiNet.

            All the judges did agree. The dissenting judge’s comments basically boiled down to, “If the universe was different, and this list of imaginary things were real, then I might be convinced to change my mind to support AFACT. But with the case that’s actually been put before me in the real world, I side with iiNet.”

            That’s the absolute closest AFACT has come to winning anything at all in three years.

            But isn’t that exactly what AFACT are doing? They believe iiNet had a legal responsibility to take steps to mitigate piracy on their network. I’m unsure how attempting to pursue what one considers to be one’s legal rights in court (as AFACT are doing) can be considered to be acting in bad faith.

            No, that isn’t what they’re doing.

            The Copyright Act has never envisaged the kind of responses they’re trying to get. Indeed, Parliaments of both political persuasions have had bipartisan agreement since the 1990’s that ISPs shouldn’t be held liable for their customers actions — that’s why they enacted the safe harbours in the first place.

            The rights holders know this, because they wrote the safe harbour section, during a consultative process in the late ’90s where Govt, rights holders and the IIA all came together.

            Turns out they don’t like the rules they wrote, and they’ve been trying to undermine them ever since.

            Sure – they’ve certainly lost proceedings thus far. It may be a case of lost a couple of battles but may win the war.

            They aren’t going to win this law, unless they substantially water-down the concept of “winning.”

            Users will continue to infringe, regardless of what happens in courts and parliaments. The rightsholders’ crazy litigiousness throughout the world since the late 1990’s have taught an entire upcoming generation of citizens to disrespect copyright laws, and it scarcely matters how it gets amended anymore.

            (if it did matter, then the legal judgements against Napster would have prevented Bittorrent’s adoption, right?)

            In the long term, everyone knows that the rightsholders’ actions will be ineffective, infringement will continue, and market conditions will never shape themselves in the way that AFACT, MIPI, RIAA, etc wants them to be shaped. That’ll be the ongoing status quo.

            All we’re really debating is whether that status quo will be cheap (i.e., AFACT is legally stuffed into their box) or expensive (i.e., the economy will carry the cost of them tossing around random lawsuits all the time).

            But regardless of whether it’s cheap or expensive, I don’t think you’re going to tell me with a straight face that infringement will, in any way, be diminished.

            And of course you’ve now got the industry body saying they’ll introduce a code and iiNet is asking for the Govt to get involved. The court has also started to give guidance on what evidence is required to be presented to an ISP to demonstrate infringement for the purpose of activating the repeat infringer policy. Small steps, but I don’t think an “unmitigated failure” is correct – whatever happens, ISPs will have to back down from their hear no evil, see no evil, sitting on hands approach of three years ago.

            Industry Codes override bits of the Copyright Act. Rightsholders lobbying for industry codes should think about whether the devil they know is better, and perhaps should be careful what they wish for.

            – mark

          • “All the judges did agree”

            You’re wrong – read the decision, particularly Jagot J who says at paragraph 527

            For the reasons set out above I am satisfied that the appeal should be allowed. In summary:
            ….
            (2) iiNet authorised the acts constituting the primary infringements as provided for in s 101(1) of the Copyright Act.

            “if it did matter, then the legal judgements against Napster would have prevented Bittorrent’s adoption, right?”

            I don’t really think that’s relevant. Napster isn’t an ISP (in AU terms anyway) as iiNet is. As to whether three strikes works – I’m not sure, it’s early days. Some say it’s working in France so far. Do you have any first hand evidence on this?

            “I don’t think you’re going to tell me with a straight face that infringement will, in any way, be diminished.”

            I don’t know. If your question is whether a three strikes system will have some effect on piracy – I reckon it might. Sure it won’t eliminate it but I reckon it might diminish it (in combination with good, legit online services). What do you think?

          • If your question is whether a three strikes system will have some effect on piracy – I reckon it might. Sure it won’t eliminate it but I reckon it might diminish it (in combination with good, legit online services). What do you think?

            I think it will not make one iota of difference; and if I happen to be wrong, then developers of p2p software will make whatever adjustments they need to make to anonymise file transfers (e.g., onion-routing them a-la OneSwarm – http://www.oneswarm.org)

            The only reason the arms race hasn’t progressed to the point where those techniques are used already is because it hasn’t needed to. Provide a reason and the solution will magically appear.

            The naiveté of the righsholder orgs who believe this war is actually worth fighting is, on one level, faintly hilarious. They’ve never internalized the lesson that gnutella only existed because they won against napster; that eDonkey only existed because they won against gnutella; that BitTorrent only existed because they won against eDonkey.

            Every now and then they get some minor victory, but have any of those wins caused piracy to diminish? No, the absolute pinnacle of achievement for all the efforts of all the four-letter rightsholder orgs put together has only been to cause whatever comes next to appear, so they can run around with their hair on fire saying BitTorrent is killing their businesses instead of, say, Napster killing their businesses. Pumping up the importance of the battle, profoundly losing the war, and, in the process, training an entire generation of new internet users and voters to disrespect and ignore copyright law.

            Eventually the creative industries will realize that the various rightsholder enforcement organizations are parasites on their revenue stream, absorbing vast quantities of money without actually diminishing piracy, and then the copyfights will stop and they’ll start to get real about the defects in their business models.

            Meanwhile, if they’re going to spend money on lawyers, perhaps they’d get better value if they retained Lawrence Lessig.

            Can I foresee a day when I won’t be able to download “Love, Actually,” for free with a BitTorrent client and be entirely confident that I won’t suffer consequences? Sure. Can I foresee a day when I won’t be able to download “Love, Actually,” for free without consequences through any arbitrary alternative method? Not likely.

            – mark

          • I disagree – i think that’s a little commercially naive. Sure developments in technology will assist pirates defy detection but that doesn’t mean that the overall proportion of pirates can’t be diminished. One needs to look beyond binary outcomes in most complex situations.

            The difference I think now is that whether they say it publicly or not, big ISPs secretly support taking action against pirates. Why? Because the profit margins they make off pirates are smaller than the profit margins they can make from selling legitimate content services to customers. ISPs can no longer look only at broadband subscriptions for revenue growth – they have to look further afield; and providing content services (fetchtv, VOD etc) is an organic growth area. But in order to make content services attractive, they have to turn pirates into customers and that’s why iiNet, Telstra, Optus, Internode etc secretly want to kill off piracy on their networks. They can keep squeezing savings at the margins by throttling Bittorrent traffic and caching copyright materials, but they know that legit content services are key to future growth.

          • Sure developments in technology will assist pirates defy detection but that doesn’t mean that the overall proportion of pirates can’t be diminished.

            That’s pretty delusional.

            Technological developments have been increasing the overall proportion of alleged infringers for nearly 20 years, and you think that’s suddenly going to stop, right now? That we’ve reached the endpoint of technical development, that everything else that happens is going to be in the rights holders favour?

            Bwahaha.

            The difference I think now is that whether they say it publicly or not, big ISPs secretly support taking action against pirates. Why? Because the profit margins they make off pirates are smaller than the profit margins they can make from selling legitimate content services to customers.

            “Secretly”? You must be joking. ISPs have always hated infringement because it drives their cost model so much higher.

            Look at how much trouble John Lindsay used to get on Whirlpool for carrying on about “leeches,” and how they don’t just cause smaller profit margins, but actual losses. He caused so much controversy that the mods banned him from using the word.

            What ISPs don’t support is taking action against non-pirates, but that’s precisely what the rights holders have been demanding. Their automated detection methods are so unreliable that they’ve been thrown out of courts in the US, so misleading that the people who use them have been threatened with having their private investigators licenses revoked in New York State, and so technically flawed that they’ve actually accused laser printers of being copyright infringers.

            And even if they were reliable, they’d still tar entire households with the infringement brush even when the real culprit is one rowdy teenager.

            Then they wonder why ISPs (and, it must be said, ISPs’ customers) find their stance unacceptable.

            Natural justice, procedural fairness, standards of proof. It ain’t rocket science.

            – mark

          • We’ll see. The High Court will of course take into account natural justice and procedural fairness in their decision. I reckon it’s exciting stuff.

            As I understand, according to your reasoning Mark, in time, anyone that creates intellectual property that can be converted into digital form will no longer be able to receive any payment for that work due to ever growing unstoppable piracy fuelled by technological development. I’m not sure I agree.

            I also disagree that big commercial ISPs are somehow the protector of the public good on this issue. They stand for one thing = $. To pretend otherwise is ignorant.

          • As I understand, according to your reasoning Mark, in time, anyone that creates intellectual property that can be converted into digital form will no longer be able to receive any payment for that work due to ever growing unstoppable piracy fuelled by technological development.

            That’s a pretty ridiculous conclusion to draw. Not only is it not remotely connected to anything I’ve said to you, but it’s also contradicted by the reality of the world we live in, where rightsholder industries continue to deliver ever-increasing profits.

            What might be true is that rightsholders won’t be able to claim payment for every single conceivable use of their goods; but that’s always been the case, and I don’t think anyone gets to feel bad about that.

            It’s also true that rightsholders might have to change their business models; but they’re already doing that (ten years ago it was inconceivable that music producers would put their whole catalogues onto a service like iTunes, yet here we are)

            But will rightsholders be “no longer able to obtain any payment” due to piracy? That’s a pretty extreme line to take. They’ll do just fine.

            Getting back to the point, though: Just set me straight: Do you seriously believe that rightsholders’ legal actions will reduce the proportion of people engaged in copyright infringement? Really? Like, you’re not just taking the piss for rhetorical effect?

            – mark

          • “Do you seriously believe that rightsholders’ legal actions will reduce the proportion of people engaged in copyright infringement? Really? Like, you’re not just taking the piss for rhetorical effect?”

            Well, to the extent that they’re successful, yes. As I’ve said (and I accept you disagree with me on this point) I think that some form of three strikes in combination with the offering of good, legit online content can turn pirates into customers.

            I don’t think legit services (such as Internode’s FetchTV), will grow beyond a pitiful level of subscribers, without some enforcement against pirates, who at this stage use a better, cheaper and seemingly consequence free substitute for legitimate service. Bu

            You’d know more than me

          • Well, to the extent that they’re successful, yes.

            And what of the extent to which they aren’t?

            As I’ve said (and I accept you disagree with me on this point) I think that some form of three strikes in combination with the offering of good, legit online content can turn pirates into customers.

            Similar to the mindset that says airliners won’t be able to be blown up if you take your laptop out of its bag at the screening point. Assumes that there’ll be no reactive response whatsoever, that the targets of the measure will just throw their hands up and say, “Well gee, if we can’t smuggle bombs in laptops, we may as well all go home.”

            You’re in an arms race. The only outcome that’s guaranteed in an arms race is more arms. Everything else is random, unpredictable and chaotic — which is exactly the way the infringers like it.

            – mark

          • “And what of the extent to which they aren’t?”

            Huh? I understood that you asked whether I thought that if AFACT won (and inter alia, ISPs do have to take action against pirates), whether that would have any effect on the level of piracy. I said yes (as long as it occurs in combination with good, legit offerings). But I apprecaite you disagree. I’m not sure if I can be any clearer.

            “Similar to the mindset that says airliners won’t be able to be blown up if you take your laptop out of its bag at the screening point. Assumes that there’ll be no reactive response whatsoever, that the targets of the measure will just throw their hands up and say, “Well gee, if we can’t smuggle bombs in laptops, we may as well all go home.”

            I find it difficult to draw any similarities from your example with the situation at hand, but that could just be me. But are you saying something like “why do anything to stop anyone doing anything that they like, anytime time they want, regardless that it’s unlawful; because they will just find a way around it”? Sounds like a cry for help to me.

          • … and that sounds like a straw man to me.

            There’s not much benefit to going ’round in circles, because the outcome won’t be affected by the comment threads on Delimiter. The issues have been aired, let the chips fall as they may.

            See you in ten years, eh?

            – mark

          • “There’s not much benefit to going ’round in circles, because the outcome won’t be affected by the comment threads on Delimiter. The issues have been aired, let the chips fall as they may.”

            Word.

            “See you in ten years, eh?”

            Better yet, let’s chat again post High Court decison. I enjoyed our discussion.

          • Better yet, let’s chat again post High Court decison.

            The High Court decision is a mere punctuation symbol in the book. If AFACT wins it’ll make a big splash in the papers, and AFACT lawyers will all earn Christmas bonuses, and everyone’s internet access will get more expensive due to compliance costs, but in the long term it’ll mean very little.

            Just like the Napster decision meant SFA: Lots of lawyers sunning themselves in the reflection of their own majestic gloriousness, but no impact on infringement whatsoever. After ten years it doesn’t look like RIAA had much of a win there, eh?

            Far better to survey the wreckage a decade down the track and see if we can pick out who the actual winners are.

            – mark

          • “The High Court decision is a mere punctuation symbol in the book. If AFACT wins it’ll make a big splash in the papers, and AFACT lawyers will all earn Christmas bonuses, and everyone’s internet access will get more expensive due to compliance costs, but in the long term it’ll mean very little. ”

            I disagree. If AFACT wins, I reckon it will help jump start the commerical success of legitimate online content services.

          • “Of course, the appellate decision was by no means clear cut because of course not all judges agreed. Indeed ultImately, it may prove to have been a pyrhhic victory for iiNet.”

            Are you sure you don’t have a vested interest? You seem to be suggesting that the ISPs are responsible for their consumers actions. ISPs don’t breach copyright (at least in this respect) consumers do.

            And I don’t care if it’s expensive and time consuming for the industry to target people who are actually, genuinely, provably responsible. Be no different if one person out of 50 on a street was suspected as stabbing someone. We don’t just grab the entire street of people and send them to all to jail without legal recourse.

            But that’s exactly what Copyright holders want. An off button. For anyone they “suspect”.

          • “You seem to be suggesting that the ISPs are responsible for their consumers actions. ISPs don’t breach copyright (at least in this respect) consumers do.”

            It doesn’t matter what you or I say – it’s what the law says. The law says a person that *authorises* the infringement of copyright, infringes copyright themselves . That’s what this whole court thing is about and that’s what the High Court will decide – whether iiNet authorised copyright infringement on the part of its customers. I’m happy to go with whatever the High Court decides.

          • How are the ISPs authorising the infringement? They have no knowledge of what the data is or whether it is infringing. Even if they knew what the data was, it is up to a court to decide whether or not the person is infringing, not the ISP.

          • If you’re really interested, take some time out to read the two iiNet judgements. They explain the law and technology quite well.

          • Bit Torrent is just a protocol. For an ISP to be aware of what is being passed via this protocol they’d have to be sniffing the packets to interrogate them as to what they are for and even then they’d have to capture a fair amount to truly work out what it is.

            Sure they could setup a honey pot of a movie or download the movie from someone on there network. But an ISP isn’t in the business of trying to lose customers.

            Legally an ISP couldn’t do either of the above anyway

          • “The law says a person that *authorises* the infringement of copyright, infringes copyright themselves . That’s what this whole court thing is about and that’s what the High Court will decide – whether iiNet authorised copyright infringement on the part of its customers.”

            Ok, so if i go to Mobile and buy 500L of desiel and use it to make a bomb that i then use to blow up something. Is it then Mobiles fault for “authorizing” the use of that fuel, or is it the refineries fault for sending it to mobile, or is it the oil wells fault for taking it out of the gorund?

            Im a little confused here…

            A PROVIDER of a PRODUCT cannot be heald responsable for the end use of that product. thats just insane. This is Australia not America..

          • That’s the law and it’s been that way for decades + Australia has developed it’s own common law about authorisation of copyright infringement seprately to the jurisprudence around secondary liability for copyright infringment in the US.

            It comes down to whether an ISP has the power to prevent the infringements occuring (eg by disconnecting, supsending), the nature of the relationship between the parties (ISPs are in a business/commercial relationship with pirates) and whether an ISP took ‘reasonable steps’ to prevent the infringement (up to the Court what reasonable steps are but may entail, disconnections, suspension, sending warnings etc).

          • It comes down to whether an ISP has the power to prevent the infringements occuring (eg by disconnecting, supsending), the nature of the relationship between the parties (ISPs are in a business/commercial relationship with pirates) and whether an ISP took ‘reasonable steps’ to prevent the infringement (up to the Court what reasonable steps are but may entail, disconnections, suspension, sending warnings etc).

            It also comes down to whether the response to the alleged infringement meets the common law requirements for procedural fairness and natural justice.

            For example: If little Jonny is an infringer, natural justice is not served by disconnecting his entire household, including little Jenny, who needs internet access to do her homework.

            We have a couple of hundred years of jurisprudence which says that penalties should be worn by the individuals who have caused them to be incurred — i.e., innocent third parties should not be inconvenienced by the law simply because they were in the wrong place at the wrong time.

            In their zeal to get other people to pay for their security costs, rights holders oversimplify their publicly stated case, claiming that they simply want ISPs to comply with the law, while simultaneously ignoring those parts of the law which they find inconvenient (e.g., procedural fairness, natural justice, and standards of proof).

            It goes back to my first post on this article: They’re single-minded about what they want: Disconnection of entire households on the basis of automated bulk unproven allegations fired at ISPs out of the muzzle of a spam-cannon. And they’ll keep fighting until they get it. Not 90% of it, but all of it.

            – mark

          • sure – and the High Court will take those things into account. As to:

            “We have a couple of hundred years of jurisprudence which says that penalties should be worn by the individuals who have caused them to be incurred — i.e., innocent third parties should not be inconvenienced by the law simply because they were in the wrong place at the wrong time.”

            Pretty much for every penalty imposed on someone who acts unlawfully (be it a fine, a disconnection, incarceration) there is an innocent third party who is effected (a wife, a child etc). The High Court will consider that as part of its deliberations on what constitutes “reasonable steps” on the part of an ISP.

            Obviously ISPs think it appropriate to throttle bittorrent speeds currently, even though that effects innocent third parties who use bittorent for legitimate purposes. You’ve obviously got no issues with that?

  3. If we had services like netflix and Hulu in Australia there would no be an issue entire for many many people.

    I would quite happily pay a reasonable service fee to watch what I want when I want.

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

    This would only be applicable to people who specifically use VoIP, and in most cases there you can’t call emergency services anyway.

    In the NBN consumer world voice services will be on a separate VLAN to the data, and will be build to the voice port on the NBN box, so you could disconnect a users internet service (ie. just delete their VLAN on the backhaul) with no affect on the voice service.

    • Yeah, but still doesn’t take away the fact that without internet these days, you are severely disabled in the modern western world.

  5. On topic, I’ll agree with this proposal on the one condition, it works in reverse.

    By that I mean it only takes a couple of episodes of Media Watch to find a news publication that was blatantly ripped content from another media outlet, a clear breach of copyright. If this happens on more than one occasion then the online media publication should be immediately taken down.

    • Maybe writers should be able to send notices to cinema and retails chains having their movies removed from sale whenever they are alleged to have breached an authors copyright. Pretty sure there are lots of writers who would agree to the need for a streamed lined process to avoid the courts. While we are streamed lining processes why don’t the patent trolls get involved so Apple can stop Samsung selling touch pad and Samsung can stop Apple selling iPhone because they are alleged to have breached patents. I’m also pretty sure my neighbour is a serial killer because of all the evidence I don’t want to go to effort of showing the police or a judge but you know chuck him in jail anyway.

  6. What happens if you are studying film, under the copyright law you are allowed to download copyright material for study work

  7. I know a fair few people who pirate movies. Do you know what they all have in common? All of them have a huge, legit DVD collection.
    Many of them have told me on several occasions they have pirated movies, enjoyed them and then gone and bought them.
    This is what you never hear about, you hear about piracy creating a lost sale but you never hear about piracy creating a new sale.
    I know my sample size is small, but I honestly believe that if each of those pirates did no pirating, it would not have lead to them buying any DVDs they don’t already own, but would have stopped them from discovering movies which would mean they would have a smaller collection.

    As one of my friend’s said, piracy is just a way to make sure you don’t buy crap.

    • Actually, a million years ago I used a pirate copy of the origonal shogun total war (taken from a mates cd)

      Since then I buy all their stuff pre release, because it made me fall in love with it, I even went back and bought the one I had the pirate copy of, because i wanted to own it

    • Right on the Money Mitch.

      This is what I’ve said for years. Take away word of mouth and watch the Industry fall.

  8. Exactly WHOM is going to pay me, an ISP to disconnect a customer,
    Who is going to compensate me for my loss, of a customer connection, paying me a monthly fee of for example 59.95 for a potential 36 month contract?

    who is going to pay for me to call that customer to tell them
    who is going to pay me for the inevitable TIO complaint i get for this disconnection ($50 fee btw)
    who is going to stop that customer form going to another provider?

    and finally who is going to pay me, to check to see if that customer has been booted off another ISP’s network and is just changing providers to skip the lockout.

    • well yeah. ISPs wants someone else to pay for all those things. But it is in your contract with your customer that you can disconnect them when they use your service to break the law. It’d be weird for you not to disconnect them even after you were told they were using your service to break the law, just because it suits you commercially not to do so.

      • Your logic is flawed. It assumes that a copyright holder merely telling an ISP that a user is infringing is in itself legal proof. It’s not. Even with proof provided by the copyright holder. It is not the ISP’s place to determine if someone is or isn’t breaking the law, it’s the court’s.

        Using your argument I should be able to ring up your ISP and say, “Hey, this ‘yes’ guy is breaking the law using your service, disconnect him.” Then dump some dummied up documentation as “proof”, then the ISP should disconnect you. The ISP has no way of knowing whether or not the documentation is legitimate. But according to your stance they should disconnect you anyway rather than let the courts decide.

        • “Your logic is flawed. It assumes that a copyright holder merely telling an ISP that a user is infringing is in itself legal proof.”

          No, sorry – that wasn’t what I was attempting to convey – I was just describing the law. The High Court will give further guidance on what level of proof is required . The Federal Court has indicated that a Court ruling isn’t necessary to invoke an ISP’s responsibility to take action against pirate customers.

          I’m happy to abide by whatever the High Court decides is an appropriate level of proof in these circumstances.

      • But nobody has been found to be using an internet connection to break the law. The media rights groups have never gone to court to prove this, they’ve simply sent allegations to the ISPs.

        I could right now make an allegation that you are a serial killer. Should you be sent to jail and punished simply because I’ve said this? Of course not, only a moron, or a Copyright group would think that is an appropriate situation.

        • The problem in the first iinet case was that their notices, wern’t notices (by the law)

          they wern’t sworn, and lacked one or two other things that I don’t remember now

          not being sworn, they could say what they liked

    • Exactly WHOM is going to pay me, an ISP to disconnect a customer,
      Who is going to compensate me for my loss, of a customer connection, paying me a monthly fee of for example 59.95 for a potential 36 month contract?

      If it’s similar to what’s happening overseas the customer will still be required to pay out the contract period, so the ISP still gets paid.

  9. So when enough people have been disconnected and enough families lost their internet connection – what then will be done to stop the creation of a second class of citizens who have no access to net based education or facilites etc?

    Do people really want to endorce something that will ultimately come back and bite them in the arse?

    Really – when homelessness wasn’t a focus and street crime figures were up because kids were breaking into homes left right and centre – did people really enjoy paying more for insurance etc?

    Extrapolate this disconnection knee jerk reaction and see where it leads to. We have spent conviction legislation because someone did the figures and realised that going forward we would run into employment issues due to the large volume of people having a conviction and it locking them out of the workforce in so many ways

    Little johnny downloads a movie because the parents dont realise what he’s up to. In time, the ISP disconnects the family internet access – the whole household is punished. They can no longer pay bills over the internet, quickly access job information and submit school assignment etc – is this the best outcome for society long term? I don’t think so – it leads to problems that will cause negative feedback

    Interesting how they claim Australians are some of the highest violators of copyright in the world – I wonder if its because we also have the most pathetic access to online content too?

    • If you drive like an imbecile and feel the need for speed and get caught, you are subject to penalties (e.g. fines and potentially the loss of your licence). The privilege of driving a car is valuable, so you need to obey the rules or risk losing the privilege (off to public transport you go!)

      The introduction of an n-strikes system has merit because the account holder is given the opportunity to rectify the situation *before* it escalates into a more serious matter. If you download like an imbecile and feel the need to infringe on copyright and get caught n-times, you lose your privileges for 3, 6, or 9 months (off to internet café you go!)

      If little Johnny (I never listen to my parents) downloads Avatar causing an infringement notice to be sent with a strike, the account holder needs be take responsibility for the breech and take appropriate action.

      • The difference is that if you get fined and you actually were driving safely and in accordance with the law, you can appeal. With the 3 strikes system you cannot.

  10. We know about phoenix companies, if all they do is disconnect, we will end up with phoenix accounts.

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