Senate order: Greens demand secret piracy docs


news The Australian Greens have filed a motion in the Senate requesting that the Government release documents regarding its closed door meetings on Internet piracy which the Attorney-General’s Department has blocked from being released under Freedom of Information laws.

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

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

The Attorney-General’s Department stated in its response to a FoI request that it “does not hold” a list of the attendees who actually attended the February meeting. Furthermore, the department censored the names of the individuals invited to attend the meeting. It also completely redacted a document consisting of the agenda of the meeting, which had been distributed to those invited to attend. Delimiter is appealing portions of the blocked FoI request.

This morning, Greens Communications Spokesperson Scott Ludlam filed an order in the Senate that the Government disclose details of the most recent meeting. “The Government refuses to reveal almost any information about the attendees, the substance or the outcomes of the meeting,” he said in a separate statement. “A Freedom of Information request from a journalist looks like it’s been met with maximum resistance.”

“Major ISPs and representatives of the film, television and music industries have held a series of meetings with the Attorney-General’s Department to discuss an industry fix to the issue of online copyright infringement. This would be fine if everyone was at the table. But for some reason, former Attorney General McClelland decided to lock out the people that actually matter – the people who produce, and the people who purchase and use, the content.

Previous documents released under FoI laws have shown that the Attorney-General’s Department actively blocked representatives of consumer groups from attending the meetings.
“Even with the best will in the world, simply inviting the intermediaries to come up with something that suits their collective commercial interests is hardly an encouraging recipe for looking after the public interest,” said Ludlam. “I acknowledge that ISPs have done their best to prevent predatory behaviour by rights holders in the past, but there’s no substitute for a diversity of views in a forum such as this.”

“New Attorney General Roxon has inherited this situation from the former AG, and I call on her to table this material in an act of good faith and open the doors of these meetings so that the public can get a sense of what’s being cooked up.”

Senator Ludlam’s order for the production of documents asks that lists of invitees and attendees, notes and minutes arising from the meeting, any documentation issued to attendees, departmental correspondence regarding the meeting and any documents relating to future meetings be tabled in the Senate, on Thursday 22 March.

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

“Government probably wishes the whole thing would go away, but given that it hasn’t, they have reluctantly joined in the conversation, to see if a commercial solution could be encouraged.”

It’s not the first time Ludlam has criticised the Government over the issue. In late January the Senator said the various parties had been “locked in a room by a former Attorney-General and told to sort something out” — asked to resolve the question of how content creators could make money in a world where file sharing through platforms such as BitTorrent was popular.

“What I find the most offensive about that, is that they locked the people out of the room that actually matter,” Ludlam said at the time. “All of the writers, the creative artists, the performance people, they’re not in there. The rights holders are in there. The end users, the consumers … us, are locked out of the room as well.” Ludlam said it was the “intermediaries” who were discussing the issue under the auspices of the Attorney-General’s Department, who had been told to come up with something that was “not too offensive” for their corporate interests. “They’ve locked out the producers and consumers. The model which will be introduced in Australia, when we get to hear about it, will probably be stuffed and offensive,” he added.

Delimiter is seeking to contact the office of the Attorney-General for a response to Greens’ Senate move.

Update: Delimiter has received news from Scott Ludlam’s office that the vote on the motion for the production of documents has been held over until tomorrow (Thursday).

Image credit: David Howe, Creative Commons Attribution 3.0 Unported licence


  1. and btw – what is the greens policy on unlawful filesharing? or is that irrelevant?

    • I have badgered Scott about this in the past, and I think they are working on developing a policy — but they haven’t released it just yet ;)

      • On the face of it, Ludlam has a keen interest in online safety, online security, interenet governance, privacy, online copyright and related issues.

        But as far as I can tell, the Greens have no real policies on these issues. I appreciate they’re not as resourced as the bigger parties, but they’re certainly better resourced now than they were before the last election.

        As far as I can tell , Ludlam’s policies are to do whatever tech journalists, EFA and related entities tell him to do. Which is fine – to a point. But at what stage is he just an Abbott like naysayer. It’s one thing to point out problems – it’s the mark of a talented politician to actually offer solutions. So Senator Ludlam, if you’ve got something intelligent, well-researched and costed to offer up – let’s hear it. Otherwise,your whinging is getting a little shallow.

        • This is a pretty harsh comment — I disagree with you about Ludlam.

          In my experience, he is a fair bit like Malcolm Turnbull in his approach to policy development. Both of them, when looking into an area, go away and research it extensively themselves, looking at all sides of the debate, before forming a view and discussing the issue with their party colleagues.

          Ludlam is one of the few politicians who thinks really deeply about all the issues he investigates — whether that be digital rights, foreign or nuclear policy. I have a great deal of respect for him. We need more independently thinking politicians like Ludlam.

          • Well, I guess that’s my issue – he’s shown very little independent thought (at least in the online field). As I said, he just does what “online rights activists” (or ISPs) or tech journalists ask him to do.

            The pinnacle of well researched, independent policy development is of course, the development of a policy – which Ludlam doesn’t have.

            Inseatd of just saying, “no – that’s bad”, why can’t he stretch himself and say ” but this [insert actual policy] is better”. Is that an unrealistic expectation?

          • There is something to be said for: “What we have now is ok” ofcourse.

            Just because the Rights-Distributors are complaining there is a problem, doesn’t actually mean there is, and it certainly doesn’t mean that the problem is what they say it is.

            Also, agreeing with someone, isn’t doing what they tell you. Scott may have views that align well with entities like the EFA and tech journalists (as you put it), it doesn’t mean he “does what they tell him” any more than Tony Abbott’s policies on the mining tax is directly as a result of the mining industry telling him to oppose it.

            Tony is against the mining tax for reasons that include; but are not dictated in isolation by the mining industry.
            Likewise Ludlums point of view is what it is based off his research. Press releases, evidence and the stance of the EFA (and whoever) I am sure plays a part, but not necessarily a defining part in this.

            To say it about either of them would be to misrepresent them both equally.

          • Of course, choosing to do nothing is without doubt a policy. But is that his policy?

            If Ludlam thinks something isn’t broken, and is working as it should, he should say so. For example, if he considers the level of online piracy is perfectly ok and the market should be left alone to work it out and copyright law in situ is good – let’s hear it.

            I don’t think we should have to make inferences as to what his policy is. I suspect however, he doesn’t have a policy and it’s easy enough to score polticial points by criticising others instead of proferring some intellectual thought.

          • I think I agree with you on this one, though to be fair, the smaller parties don’t have the resources to create policy on every issue.

            Other than the major issues, I consider the smaller parties to have a very specific standing-order policy.
            The best way I would describe it is: “Oppose all parts of Government/Opposition policy that makes no sense, and support the parts that make good sense”.

            Obviously, it gets filtered by their ultimate aims. Avoids the need to spend resources developing in-depth policy on things they might never need to address.

          • Inseatd of just saying, “no – that’s bad”, why can’t he stretch himself and say ” but this [insert actual policy] is better”. Is that an unrealistic expectation?

            He offer suggestions all the time, one example was in this very article, invite consumers and content producers into the talks with the isps and publishers.

            You talk about policy is irrelevant, none of them have a policy on this specific issue.

        • Without agreeing with the rest of what you said, it is not necessary to have a better idea in order to point out a bad one. The police don’t proffer ideas about how you spend your time lawfully, they just maintain that you don’t break the law. A politician can similarly chose to divide their time between coming up with good initiatives and pointing out the problems with bad ones.

          • or if you are Tony Abbott / Malcolm Turnbull inventing fake issues with good policies (eg NBN).

          • Geordie – I don’t think the analogy you have put forward comparing the role of police to the role of publicly elected politicians has any relevance to the issue at hand.

        • Wellington, you’ve made some very interesting points, but I think it’s time to ‘fess up. Are you from the Liberals or the Nationals? I suppose you may be from Labor given that snipe about Abbott, but I think that’s just misdirection.

          People don’t like it when political operatives jump into fora without declaring their allegiances, but yours are written broad throughout your posts. I suggest you declare your interest and memberships.

          • Steady on there big fella – I’m not from a poltiical party. Play the ball, not the man.

            If it helps, I voted Labour last election and would consider voting Greens – if they developed some policies. I could never bring myself to vote for Abbott though……Is that enough personal information for you?

          • I don’t think it is fair to think that it is possible for a party with about 9 elected senators and one in the house of reps to have a policy on every little issue.

            At the end of the day this is a small issue and we should be thankful that anyone is trying to make this discussion open for us to see.

          • That’s reasonable but I think when you talk disparagingly and voluminously on particular policy issues – be they internet filtering, online copyright, privacy etc, you should back it up with an alternative policy. Then your contribution becomes constructive.

          • Sounds fair enough to me boots guy, can’t see why anyone would question your political allegiance, a query as to any possible association with AFACT sounds far more appropriate to me.

  2. If the “rights holders” pulled their finger out, stopped treating their customers as pirates and stopped restricting access to content via new technologies they might find piracy becomes largely a non issue!

    e.g. I love the Picture & sound quality that Bluray delivers but the enforced viewing of trailers, FBI warnings, slow load times and having to constantly update my player to get around the latest “bug” introduced by lazy studio coders! However If I download a 15GB Bluray rip from the Net I can just watch it without all the irritations – so piracy is actually providing a better customer experience than the studios! #WTF

    Toshiba created the HD-DVD format which was consumer friendly, didnt have region coding and didnt have the ridiculous Java VM’s that cause so many issues on BluRay but the studios eventually all sided with Bluray because Fox wanted the “more secure” format. The studios still havent learned that no matter how draconian the security is on “their content”, the hackers will break it in less than 12 months! Even the music industry has mostly woken up to this and now provide DRM free music at reasonable prices.

    FWIW, I have over 300 purchased DVD’s, HD-DVD’s & Blurays in collection and rarely ever DL movies.

  3. didn’t you herd?!!

    the greens are into all of this secrecy and stuff.
    they work for the CIA!!111one!!1

  4. This whole topic makes me so angry. The rights holders are so fraking lazy. Give Australians Netflix and other affordable access to the shows, movies and music that we love AT THE TIME WE WANT IT, and NOT at the inflated price Australians pay compared to their American counterparts. The Aussie dollar was buying $1.05 the other day and yet we pay up to 2-3 times what the US pays for digital downloads and we often wait a lot longer to access stuff we want when its released.

    I just wish the government would see this, but as pointed out, nobody has been invited to the talks who would shed light on the current situation.The ISP’s probably don’t care and the rights holders of course would try to keep a lid on the facts. God forbid they actually had to make some progressive change to their archaic business models.

  5. Lets see if the Greens use their leverage in parliament to force these info requests through. Both major parties at state and federal level have been trained to accept that the goals of the public service and the goals of the politicians are the same – whereas the people of Australia are crying out for representation. Perhaps the Greens could also use their clout to highlight the substance and issues surrounding ACTA and the TPP. Its a pity that the greens policy on nearly everything is so conflicted, a few more of them in parliament would be both fun and terminal.

  6. The below will “fix” the Australian market in a number of areas.

    If you want protection of copyright or IP laws you must offer your product or service at a comparable price with comparable condition to your home market. US studios want to charge twice as much for a movie they release 6 month later BAMM no copyright protection for you. Adobe charging a 75% on digital download goods as the good old USA BAMM pirate can start selling copies of your software for download and there is nothing you can do about it. Latest designer handbag 5 times the price as available at your flagship store back home BAMM you lose all right to do anything about the Chinese knockoff coming in.

    The above post may contain tracers of nuts and humor.

  7. Ludlam will have no impact. This issue is much bigger than him. Whoever talks the talk will not be allowed to walk the walk, that much is certain. It may even elevate into an election issue. Yet somehow, shortly after election, it will suddenly vanish into inaction and lip-service, or most insidiously, token action followed by a much larger counteraction veiled in yet more secrecy.

  8. Typical Liberals … oh wait, same idiots, different name … typical Labor!

    No matter what color they paint it, red or blue, the Australian Parliament still stinks like a mid-summer out-house.

    Freedom Of Information … not if the soup … I mean internet nazis have their way, which they are … no internet for you! No right of reply. Mistakes are denied, covered up, misrepresented.

    I thought the clowns at the Australian Parliament were elected by the people for the people … so why is it that only the Greens are standing up to be counted?

    I am pretty sure that Labor and LIberal claim to represent the people of Australia … funny that, as they simple aren’t doing that.

    No wonder politicians are held in such high contempt. They deserve it and the few decent politicians simply aren’t enough.

    Once again the Australian citizen is being screwed over by faceless suits with money meeting politicians behind closed doors.

    Open and accountable … a concept foreign to those snouts in troughs, the pigs swill that infests Parliament.

    • Its not just the parties. But these Attorney-Generals who seem to think they know better than everyone.

      Internet Filtering, Internet Surveillance, R18+ Ratings, Copyright policy .. they have their fingers in all of them and do whatever they like. its bs. I mean, come on now… we have a ex-health staff now looking after copyright holder meetings and blocking out the people from knowing?

      How much is roxon getting paid by MAFFIA?

  9. Wow… How is it the Greens manage to make me want to vote for them again?


  10. The rights holders are living in a fantasy world – they had this same hullabaloo when cassettes came out, when the VCR came out, and when CD/DVD burners became a mainstream product. They just don’t understand – and they refuse to understand if it means they can squeeze another dollar out of the consumer.

    Take comedian Louis C.K. for example – posted a recording of his latest show online for $5 and asked people not to pirate it, totally DRM free. In two weeks he had grossed over $1 million, with he then paid his costs, paid extra bonuses to staff, gave some to charity and kept a portion to himself.

    This shows that consumers are willing to pay – but only what they see as value. The humble indie bundle is another example – pay what you want for a bundle of 4-5 games. This is so successful is has gone under 5 iterations of this – and more is planned.

    Wake up rights holders – the internet is not there to cheat you, but rather enable you to sell content faster, more efficiently, in more locations and in greater volumes. Stop persecuting the ISPs that can make you squillions.


  11. Ironically, they are *so* close to a solution.

    “the various parties had been “locked in a room by a former Attorney-General and told to sort something out… All of the writers, the creative artists, the performance people, they’re not in there… The end users, the consumers … us, are locked out of the room as well.”

    Now all you need to do is throw away the key.


  12. The Australian government needs to realise that just because it wants a “close relationship” with the USA doesn’t mean that every time they come calling we have to drop our pants, bend over and ask them to be gentle. Represent Australians for once.

    The US has a problem, in that its major export nowadays is information/content. It’s keen to make sure companies can get the maximum price for that content, but has spent the last 20 or 30 years ignoring its own citizens and the rest of the world. Extraditing a 23 year old man from England for breaking content law is just the latest in a long line of stupid acts that began with bowing to Disney and extending copyright protection to 75 years after the artist’s death! How is that protecting the artist? And how is differential market pricing good, when Australians can pay double or more what people in the US pay (I refuse to refer to Americans, because there are so many Americans that don’t live in the US) for the same product simply because of protectionist government policies that prevent multiple importers and allow publishers to set different prices in different markets. Anyone who has ever used STEAM knows exactly what I’m talking about here.

    In the meantime, Apple is using its cash to suppress innovation by applying patent law, and every other technology company is joining in the madness to sue. People in the US get filed with papers saying pay up or we’ll take you to court and it’ll cost you heaps, and end up having to pay when they haven’t actually done what they’re accused of. And a SWAT team raids a house in New Zealand!

    Wake up governments, and start working for your citizens. Corporations are not people!

  13. Hey everyone, just a brief update: I have received news from Scott Ludlam’s office that the vote on the motion for the production of documents has been held over until tomorrow (Thursday).



    • If his motion is denied it is pretty clear that government does NOT want this issue to become public. This could be as toxic as the filter for them and they will most likely do anything to see it go away. It’s a pity that the consumer will pay a very hefty price for that.

      • Actually, about it going public, Main stream media couldn’t give a flying duck about this sort of stuff so I guess the gov is kinda safe in that regards. It’s up to the tech media and us geeks to expose it for what it is – The backroom deal the government did with the Devil.

    • hey Renai, the Senate is now on break until 8th May, and the Red (order of business) doesnt show any voting results. Any updates?

      • Ludlam’s office told me this morning that voting on the motion has been postponed until 8 May. I am appealing the FoI block — they will get back to me on this within 30 days.


        • What a joke, they will just continue to delay and censor this for as long as possible. By the time we hear anything concrete it’ll all be over and the rights holders will have gotten what they want and be in a position to both restrict access to content as they currently do as well as hold a gun to every consumer’s head.

  14. Renai, why does your story talk about “the film, television and music industries” being involved in talks when it is only the the film, television and music DISTRIBUTION industries” being involved.
    If it wasn’t for the distributors, the creators and consumers would have to find different ways to connect to eachother, but connect they would. However, without both the creators and consumers, the distributors would be out of business. They need us more than we need them.

  15. Now that is funny. The Greens put a complete media blackout on their annual conference. What complete hypocrites they are.

    • Except that there is no obligation on the part of any Party to open internal party meetings, the procedural discussions of which are largely irrelevant for the voting public

  16. @Renai – maybe Steve Dalby could sneak you in to a meeting if you were to wear a moustache as a disguise.

  17. The problem is that neither side can agree.

    The Rights Holders are used to having it their way, and won’t be flexible over cost (they exist to make money, not expend it) and the ISPs are between the old axiom of “a rock and a hard place”.

    I’m not sure “forcing” an outcome, ala arbitration is going to lead to a positive result, I’m sure Steve has worn his teeth down from grinding them at the frustration.

    Ultimately, it’s not up to the ISP to be a Copyright Infringement police force. And Rights Holders have to compromise on how enforcement occurs.

    So we have an impasse.

    RH’s won’t change their business model to be more adaptive, as that’s a profit killer (sharing profits with others seems to be a long-standing sticking point – look at all the industry heart palpitations over iTunes, for example) and ISPs will be left to pick up the tab.

    That’s not a viable option, as ISPs will be inclined to pass on the cost as a “tax” of sorts.

    As much as Copyright Infringement is a problem, RH’s are not doing themselves favours by refusing to compromise, when they demand everyone else does. That the AG’s are now involved illustrates how well the RH’s just don’t get along with anyone, as this sort of thing has dragged on for years.

    A change to existing laws to make a more efficient, yet legally sound model to reduce RH’s costs is a possible start, which translates to perhaps smaller, more realistic fines that actually reflect truer potential loss) but in return they need to make some accommodation regarding ISP costs.

    Perhaps the AG’s can ‘force a settlement’ but that’s probably just a little star-wars nostalgia creeping in. ;)

    • I agree with all that, although I don’t necessarily think ISPs innocently find themselves in the middle of this problem all clean-handed.

      What I’d like to see as a solution to the issue is some form of quid pro quo:
      1) ISPs have to do something more in response to good faith allegations of infringements on the part of their users:and
      2) rights owners *have to* bring legitimate content services to the online marketplace

      Number 2) is hard ie. how much do they have to offer online? at what price? how to quantify? how to police?

      But I think those two princples can go a long way to addressing the problem.

      • “I agree with all that, although I don’t necessarily think ISPs innocently find themselves in the middle of this problem all clean-handed.”

        Sorry? They don’t exist to facilitate infringement. They exist to offer a service, that being internet connectivity.

        Much like the postal service exists to move packages from point a to point b, not specifically aim to profit from the trafficking of illicit substances by those whom chose to do so, despite charging for the service.

        Volumetric pricing has more to do with how remote we are, versus international transit costs, and the overwhelming desire of the end consumer wanting a predictable bill.

        That some choose to have a 500 GB plan, isn’t a smoking gun, for example. Anymore than a police officer having a firearm means he’s a crazed gunman. That the two can be linked, doesn’t make it so by default.

        ISPs have to follow the law. What needs work better, is the law. So the likes of the Copyright Act and such need provisions to allow a more efficient process for RH’s to follow said laws. Because right now, RH’s have all but refused to follow due process and instead demand rights to disconnect people under suspicion.

        The Copyright Act also needs an overhaul to review what fair use, or personal use is, and whether there needs to be changes to ensure the rights of both the Holder and Consumer are maintained.

        It also then ensures ISPs can uphold privacy laws, etc which tend to frame a lot of the discussion. Which it rightly should.

        All of which is ridiculous amounts of work. All of which is framed in the light of RH’s demanding it “their way, or else”.

        At least the AG’s have some degree of legal clout and can perhaps spear head some of the much needed change. That’s really all we can hope for, at this point, as virtually every other avenue leads to RH’s demands reaching ever more disproportionate levels, and consumers left to pick up the tab.

        Understand that if ISPs have to pick up the tab on behalf of RH’s, it will affect the end consumer. So not only are we shafted by not gaining timely access to content under reasonable conditions, we have to pay for the alternative as well.

        There’s a balance. But it requires RH’s to be as flexible as they demand others to be. And Laws to be amended. And that’s just not happened.

        • Brendan said “Much like the postal service exists to move packages from point a to point b, not specifically aim to profit from the trafficking of illicit substances by those whom chose to do so, despite charging for the service.”

          These oft rolled out analogies are meaningless. We’re intelligent enough to examine the situation without having to resort idiotic similitudes as if we only heard about the Internet for the first time yesterday. And if you want to persist with such an ill-fitting comparison – let’s discuss how much money is spent on detecting unlawful material distirbuted by Australia Post.

          As for “Understand that if ISPs have to pick up the tab on behalf of RH’s, it will affect the end consumer.”
          I reckon that piracy has been a key driver for broadband internet revenue growth in this country, so it’s more a case of ISP picking up the revenue in place of RHs. And for a great many consumer it’s meant no, reduced or very limited expendiure on RH product (including films, music and games) since the roll out of ADSL and cable internet in this country.

          • “And if you want to persist with such an ill-fitting comparison – let’s discuss how much money is spent on detecting unlawful material distirbuted by Australia Post.”

            It isn’t ill fitting. It’s a very good example. Australia Post work with law enforcement agencies. They are not the enforcement agency.

            AFP, Customs and other teams are responsible for such investigations. That means the Law is being used, as it should.

            Demand exists for content. RH’s can either embrace the demand, or fight it. The later has been the modus-operandi for years. Using the Copyright Act as a cudgel is also now the status-quo.

            You can argue all you like about how ISPs profit. Their intent is to provide a service to meet demand, just as any other service provider does. And that, to my mind, is key. Much as ‘intent’ forms a large part of how the judiciary works.

            The Laws need work. The RH’s have to grasp that to get what they want, they need to compromise. Until that happens it’s going to remain an impasse.

          • Without doubt – both sides need to compromise.

            As to an ISP’s intent – it’s intent is to make profit. Even if that involves deliberately turning a blind eye to unlawful activity that occurs on its network, that it is aware of, and that it able to take reasonable steps to mitigate or prevent.

            As to RH’s pursuit of the administration of justice in accordance with the law – is that not a right that every person should enjoy?

          • “As to an ISP’s intent – it’s intent is to make profit.”

            Exactly. A blind eye is not being turned. A lack of interest in paying to be a RH stooge, is being expressed. It cannot make profit if it’s profits are burned playing the schoolyard bully on behalf of an Industry.

            The ISP is not the gatekeeper. That RH’s have so abysmally mishandled their own policing that they now require the ISP to play the part of the cliff-face ambulance, is not the fault of the ISP.

            This is little more than RH’s shifting the costs to police their own content to someone else. Yet more middle-men in the great profit cycle. And you wonder why Joe Public, who would foot the bill, has an issue with that?

            Hello, this is reality calling. Please pick up the phone.

          • Brendan said: “Hello, this is reality calling. Please pick up the phone.”

            Sure is. And by this time next year, Australia will be on track to implementing a graduated response regime along the same lines as those developed in other civilised jurisdictions including NZ, USA, the UK, France and S.Korea.


          • And by this time the year after all those measures will have been countered by anonymous peer-to-peer networks leaving everyone poorer but back where we started. All industry policies presented assume that traffic can be intercepted and IP addresses are meaningful but neither assumption is technologically sound. RH’s are asking ISPs, taxpayers and consumers to pay for their wishful thinking.

          • Absolutely it will be possible to avoid detection – but that’s not to say that everyone will. Just as it is possible for everyone to pirate content today – not everyone does.

          • @Wellington: “Just as it is possible for everyone to pirate content today – not everyone does.”

            But that’s not what RH’s say. They believe everyone infringes. They believe it so strongly, no amount of actual evidence is considered, no proof of infringement is required.

            Avoiding a ‘catch all’ of IP address, when addresses are a tad fluid will be difficult. A lot of infringement claims will be bogus. It will waste a lot of time, effort, money and generate a great deal of negativity.

            And we will foot the bill, for the mistakes made by RH’s unencumbered by what would otherwise be legal checks and balances.

  18. @Wellington
    >>>ISPs have to do something more in response to good faith allegations of infringements

    I don’t think so.
    It needs more than good faith.
    Our experience is that the allegations are riddled with errors. It is unreasonable for ISPs to take inaccurate allegations and forward them to their consumers. Who will deal with the outraged customers? Who will cop the media flack? Who will wear the defamation claims?

    The Federal court has criticised the RHs, telling them they had an obligation to provide –
    1. Cogent and unequivocal evidence, and
    2. Indemnities to ISPs against the risks generated by their allegations.

    That isn’t being offered. Nor is payment for the services demanded by the RHs of ISPs.

    In the UK, the British Government has now ruled that RHs will pay 100% of costs. In NZ RHs are required to pay costs (surprise, surprise, at last check, no notices have been issued).

    In France after two years of sending almost a million notices, the French Government has decided that the process is not cost effective and are considering a ‘fair use policy’.

    Do I smell a dead horse ?

    • Great response Steve, the rights Holders need to stop crying and address the market failure of their own making!

    • Yes, I think the requirements set down by the Federal COurt are good parameters for notices sent in good faith. The question is, what are you going to do with those notices when you receive them?

      As for your comments on graduated response regimes in other countries; it’s always difficult to argue against mistruths … but what the hell, I’ll give it a shot.

      In France, almost every bit of research done on Hadopi system shows it to be successfully reducing unlawful piracy and increasing legitimate consumption of content, particularly iTunes sales.

      In NZ, RHs pay $25 to ISPs for sending the notices to their customers. Whether ISPs are making a windfall from that – you’d be best placed to know. NZ ISPs started sending notices in Nov 2011. So hundreds have been sent since then,

      And lastly, in the UK, the Uk Court of Appeal recently decided that rights owners have to pay 75% of the costs of running the network monitoring function, 75% of the the judicial process and all the appeals costs – so you were close – but still very wrong.

      As for the smell, I dare say it’s coming from the bulldust you just served up as the gospel truth.

      • @ Wellington
        >>>the bulldust you just served up as the gospel truth.

        And, in French news…
        Hadopi (It’s in French)
        The HADOPI authority seems to have become a revolutionary. Created to fight piracy, it is now questioning its own cost/benefit, looking into the possibility to introduce a “fair use” law, studying the cultural spend of households.

        … crossing to the UK –

        “But the court did give ISPs one small concession – they will no longer be forced to foot 25 percent of the costs when alleged infringers appeal to an appeal body that will be established.”

        • Steve – taking your responses one by one:

          i) You’ve just repeated what I wrote about the UK, without also mentioning that ISPs pay 25% of running the administrative side of the notificiation scheme and 25% of the judicial side – which of course directly contradicts your claims that RHs pay 100% of the scheme’s costs

          ii) In France, I’ll see your reference to a French culture magazine website with it’s third party, sourceless commentary on Hadopi, and raise it with links to well-researched, reputable, referenced sources that suggest that Hadopi is working, (in english no less):

          iii) and lastly, I’ll take your non-response to the info about the NZ scheme as tacit acceptance that claims about that jurisdiction were incorrect.

          What I find troubling about all this is that you, as a senior regulatory exec at a billion dollar listed coorporation, is blind to this information when presumably, (given you’ve been sued for authorising the infringment of copyright on the part of your customers and your in the midst of negotiating a graduated repsonse scheme), it should be on your radar.

          On the basis that you’re willing to continue this discourse – I’ve some further questions.

          i) It’s no secret that iiNet’s overseas call centres have been less than underwhelmed by people wanting to sign up for the iiNet FetchTV service. Do you reckon take-up might be higher if iiNet did more to stop its customers from using its carriage service to download the exact same content, unlawfully, without charge, in a consequence free environment?

          2) What would iiNet do, if it were the case that consumers could simply steal iiNet’s carriage services in a consequence free environment. As an example, would you do what your counterpart (now colleague?) at Internode did, and come cap in hand to the Govt asking for taxpayer assistance to fight the problem? (at a forum on online child safety!) :

          Thanks for your comments.

          • Wellington, how about declaring your obvious self interest?

            I know ppl working for the content creators (eg Rising Sun Pictures) who disagree with the way the “Rights Holders” are currently doing things – making life difficult for your customers by not moving with the times is pure self destruction!

          • Wellington, while you’re pushing your scheme to subsidise one industry with the profits of another why not show some kind of precedent for that. You claim comparisons are meaningless but I beg to differ. The industry itself argues “you wouldn’t steal a car” in its anti-piracy ads. Do the auto and firearms industry subsidise banks because their products can be used in robberies? At least in that example a direct cause and effect can be shown and a banks’ losses are quanitifiable without making assumptions about the buying power of the robbers. I think you duck comparisons not because they are irrelevant but because they help the informed realise how self-serving the anti-piracy laws really are. Ultimately you’re asking consumers to pay more for internet access because the internet might be used for piracy. As somebody who gets my media through radio, television and video rentals I find that offensive.

            I like your “well-researched, reputable, referenced” sources. They all use IFPI and Hadopi as primary sources which is like asking the police or government if they’re doing their job properly. The other cited studies might be more independent but they certainly don’t make the sorts of conclusions that back up your arguments. All they claim is that iTunes sales increased and observable p2p activity declined over a certain period. Any correlation between those claims is speculation because other factors arent measured like: Real sales increases due to new iPhone releases and holidays and moves from bittorrent to other networks. They also conclude that at least €11 million was spent on Hadopi to recover €13 million in iTunes sales. That hardly counts as a success even if it is true. That’s like winning $1 on a $1 scratchie.

            Finally, I’m really sick of your incorrect use of the word “theft”. The dictionary and legal meaning of theft is: “the dishonest taking of property belonging to another person with the intention of depriving the owner permanently of its possession”. In copyright infringement there is no deprivation of property because the original copy remains in the rightful owners possession. Copyright law doesn’t mention “theft” once because it deals with “infringment of rights”, not “theft”. By using the word theft and associating infringement with violent crime the industry is attempting to mislead people and that’s one reason they are so despised.

          • Wonderful thesis on the meaning of the word “theft” – I enjoyed it. It’s jsut that it would carry more weight if I actually used that word in any of my posts. On the plus side though, you don’t have to feel so offended now!

          • Nitpicking. You said “steal”, I read it as “theft”, one means the same as the other. It doesn’t change the implication you make regarding iiNet that a digital product or service can be “stolen”. You sound like an industry spokesperson so don’t be surprised that your message gets confused with other AFACT propaganda.

          • Steal doesn’t mean theft. Why don’t you have a look at that dictionary of yours again.

          • Ok – since you persist. Even if one was to rely “” (as profesionally recognised as it is), while “theft” may amount to an instance of “stealing”, “stealing” need not be “theft”.

            No egg on my face. You probably have a different definition of egg though….

          • Alright, Wellington, that’s it. You are winding people up and this discussion is no longer rational — it is becoming vitriolic. You are now banned for a week.

            Mate, I don’t disagree with some of what you’re saying, but you have got to find a more polite way to say it.

      • “As for the smell, I dare say it’s coming from the bulldust you just served up as the gospel truth.”

        Hey Wellington, your last warning. One more offensive comment like that and you can say sayonara to posting on Delimiter for a week.

    • This is seriously a great post Steve, it sums up so clearly what is wrong with the issue as it stands.

  19. Sadly I know where all this is going and it isn’t pretty. People who want to copy content will bypass any artificial controls through two simple means: They will share files in person through physical media; and they will use network and storage encryption.

    Since none of the controls proposed in ACTA or similiar laws and agreements can deal with this the industry will escalate matters to invasive physical searches (like laptop searches at airports) and invasive consumer devices and rootkits that report on viewing habits and block non-DRM playback (ie, HDCP). End-users will rebel against these measures by stealing more content, installing “jailbreaks” and using strong encryption.

    The government and industry reaction to widespread use of strong encryption will be attempts to criminalize its use for private citizens (governments and corporations will of course insist on their own right to it). Users wanting privacy will then be treated as criminals and suspected terrorists. No matter what happens an escalating arms race is the only possible outcome. Everyone will lose but mostly the public.

    Which brings us to the question of why we want to go through all that to protect an industry that the internet has made largely redundant. After all, the concept of an entertainment industry is only a relatively short and late addition to mankind’s history. In the 10’s of thousands of years that preceeded it entertainment was a shared social experience. In other words, in the absence of corporate entertainment people entertained each other (like youtube) and distribution was peer-to-peer (like bittorrent). The old is new again.

    What’s going on here is an industry that’s facing competition and backlash from its own consumers. It can’t survive in its current form and at its current profit levels so it is asking taxpayers and ISPs to pay to keep it afloat.

    I think it’s worth pointing out at this point that even at its heyday the entertainment industry was crap at its job. I has produced FAR more failures than hits and even its hits are usually recognised for its artless pandering to bland pop stereotypes, exploitation of artists and inccesant use of advertising. Frankly the industry can’t die fast enough.

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