Category Archives: ISP

ISP Proposes Piracy Mitigation, Detection and Punishment Framework

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Following its recent court victory over Hollywood-backed anti-piracy group AFACT, Internet service provider iiNet has been hard at work thinking of ways the issue of illicit file-sharing can be dealt with. Today it has presented a framework which includes the creation of an independent body to overlook a system of detection, warnings and punishments.

The ongoing dispute over how best to handle the illegal file-sharing of music, movies and TV shows prompted the now famous AFACT v iiNet legal battle. In late February the Full Bench of the Federal Court in Australia dismissed the movie industry’s appeal against last year’s judgment which found that ISP iiNet did not authorize the copyright infringements of its customers.

However, once the detail of the ruling had been absorbed it became apparent that had the movie and TV industries done more to improve the quality of their infringement notices, the decision in the case could have tipped in their favor.

Neither iiNet nor the studios want their opponent’s choice of system to be imposed on them – their prolonged legal battle showed that – but it’s fairly clear that at some point a compromise of sorts will have to be reached. Today, iiNet was the first to produce a report containing what it says are the steps forward.

Titled ‘Encouraging Legitimate use of Online Content’ the report begins with the ISP’s earlier stance that in order to tackle piracy the studios have got to meet demand. Having created a product and generated desire in the market place, the report argues, the studios then limit supply with their ‘windowing’ strategy, causing frustration in the market. The message is clear – once the product is available, get it out there to the customers.

The report goes on to note that despite making the product available in a timely and convenient fashion, some people will continue to pirate media. iiNet proposes a system to deal with these individuals to be overlooked by an independent body.

 

Image is Loading....“iiNet has developed a model which addresses ISP concerns but one we think remains attractive to all participants, including the sustainable strategy of an impartial referee for the resolution of disputes and the issue of penalties for offenders,” said iiNet chief Michael Malone, as quoted by Delimiter.

While offering subscribers a level of protection and outright rejecting disconnecting them from the Internet, iiNet proposes that infringers are punished within a drivers’ licence-style penalty points system.

“As with speeding fines, a low level infringement might attract a limited penalty, but then can ramp up to more serious penalties, depending on the level of infringement. The seriousness of the penalty is determined by a margin over a regulated limit,” says the report.

Continuing with the traffic/infringement analogy, iiNet says that offenses could attract “demerit points and/or fines”, the former set to expire after a set time and for single infringers, back to a clean slate.

The report suggests that infringements could be classified as ‘minor’ for a single instance, ‘major’ for multiple instances on different files, ‘serious’ for those on a ‘commercial level’ and all with their own level of penalties. But of course, proposals like this can be easily distorted by the entertainment industries.

For example, if a subscriber seeds a single torrent containing an album with multiple tracks on and off over the course of a month, is this ‘major’, i.e multiple instances on different files? If a subscriber seeds a single track in a swarm of 1,000 peers, is this ‘commercial level’ infringement? These all-important details and the disagreements they generate are what lead to prolonged legal battles.

Furthermore, iiNet suggests the establishment of a “scale of fines” could be linked to “the economic loss represented” which, in the light of some of the ridiculous and sometimes strangely mysterious reports coming out of the industry lately, is likely to make subscribers shudder with fear.

Fines could also be supported by demerit points imposed against the subscriber’s account and “when a defined limit is reached, other sanctions might be deemed appropriate.”

“These could involve charges being laid for treatment by the courts or possibly shaping of peer to peer traffic,” iiNet suggests.

To overcome the problem of subscribers being punished for the actions of others within a household, iiNet implies that the bill payer – as with individuals whose cars have been identified by cameras as committing speeding offences where they weren’t the driver – could have the option of accepting a fine or identifying the infringer so that they may be punished instead.

It will be very interesting to see what counter proposals are made by AFACT who are yet to comment on this report.

The full iiNet proposal can be downloaded here.

Following AFACT v iiNet, Internet Industry Formulates Copyright Code of Conduct

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In the wake of last month’s win for ISP iiNet in its legal battle with Hollywood-backed anti-piracy group AFACT, the Internet Industry Association announced today it will begin work immediately on a code of conduct for ISPs and other Internet companies. The aim of the code will be to help clarify the legal rights and responsibilities of a connected range of providers including ISPs, search engines, hosts and social media sites.

In late February, the Full Bench of the Federal Court in Australia dismissed the movie industry’s appeal against last year’s judgment which found that ISP iiNet did not authorize the copyright infringements of its file-sharing customers.

“While I disagree with the primary judge’s reasoning in significant respects, I am nevertheless of the opinion that his Honour’s decision to dismiss the proceeding was correct,” the ruling from Justice Emmett read. “In my opinion the appeal should be dismissed.”

While the decision was a cause for celebration in some quarters, closer analysis of the ruling left significant room for caution, in that it raised the possibility that under certain future circumstances ISPs could be held liable for infringements carried out by their users. In very basic terms, if the movie industry had provided iiNet with better infringement notices and the ISP had still not acted on them, the outcome of the case may have been different.

The ruling therefore provides guidance on how the movie, music and other copyright-related industries should proceed in future in order to more forcefully back ISPs into a corner on subscriber infringements. However, Australia’s Internet Industry Association (IIA) feels that although some outline parameters have been set by the ruling, further detail is required for affected companies to effectively manage their responsibilities.

“Having closely reviewed the recent decision of the Full Federal Court, we’ve concluded it’s both necessary and appropriate to develop a code of practice to give a wider range of internet intermediaries greater certainty around their legal rights and obligations,” said IIA chief executive Peter Coroneos this morning.

“The iiNet case has provided us with welcome guidance on where responsibilities should begin and end, but falls short in defining reasonable steps intermediaries should take in responding to allegations of infringement by their users. The Code will address this gap.”

Although AFACT’s legal action was squarely aimed at iiNet, IIA’s code will be aimed not only at ISPs but other service providers including web hosts, search engines and social media services.

AFACT has insisted all along that piracy is straightforward thievery by Internet users, but iiNet and indeed IIA’s Mr Coroneos firmly believe that infringement is a result of consumers taking steps to fill a gap between supply and demand. While not condoning piracy, both believe that if the entertainment industries provide better services, change can be brought about.

“Market failure remains a core contributor to the infringement problem,” Coroneous said. “If users have access to more and better content, when, where and in the form they choose to consume it, and at a realistic price, we’re quite confident the motivation for infringement will decline.”

In addition to the development of the Code of Practice, the IIA will renew its efforts to have the so-called ‘Safe Harbor’ provisions in the Copyright Act extended to cover not only ISPs, but other intermediaries. Coroneos said that protections similar to those available under US law do not exist under Australian legislation.

“This has left search providers, social network media, universities, auction sites, hosting and cloud services, corporate networks and others exposed to potential liability for the infringing acts of their users,” he said.

Quite how AFACT will respond to the creation of the Code of Conduct is unclear. IIA and AFACT had talks on the issue in 2007 but they came to nothing.

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iiNet Fights Off Hollywood, ISP Not Responsible For Online Piracy

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The Federal Court of Australia has dismissed the movie industry’s appeal against a 2010 ruling which found that Internet service provider iiNet is not responsible for copyright infringements carried out by its file-sharing customers. iiNet boss Michael Malone described the decision as a relief while AFACT boss Neil Gane said “it cannot be right” that the ISP takes no responsibility.

The Full Bench of the Federal Court in Australia has just dismissed the movie industry’s appeal against last year’s judgment which found that ISP iiNet did not authorize the copyright infringements of its file-sharing customers.

Represented by anti-piracy group AFACT, nearly three dozen Hollywood and local studios took iiNet to court in 2008. In a 2009 trial the ISP was accused of doing nothing to stop its customers downloading films and TV shows but in February 2010 the Federal Court decided that iiNet was not responsible for their activities. An appeal was heard later that year and today the decision was handed down.

Justice Emmett said that the Court continued to agree that the rights of the movie companies had been infringed but could not find in their favor.

“While I disagree with the primary judge’s reasoning in significant respects, I am nevertheless of the opinion that his Honour’s decision to dismiss the proceeding was correct,” the ruling reads. “In my opinion the appeal should be dismissed.”

The ruling itself is an absolutely huge affair and will take a considerable time to digest, but at this early stage it seems quite clear that even after two years of legal battles, this fight is probably still not over.

“Even though the Copyright Owners are not entitled to the relief claimed in this proceeding, it does not follow that that is an end of the matter. It is clear that the questions raised in the proceeding are ongoing,” the ruling reads.

“It does not necessarily follow that there would never be authorisation within the meaning of s 101 of the Copyright Act by a carriage service provider, where a user of the services provided by the carriage service provider engages in acts of infringement such as those about which complaint is made in this proceeding.

“It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements.”

Nevertheless, on the thorny demand by AFACT that iiNet should have blindly sent out warnings and suspend customer accounts based on the information it provided, the ruling is clear.

“I do not think [iiNet] could reasonably be expected to issue warnings, or to terminate or suspend particular accounts, in reliance upon any such notice in circumstances where it has been told nothing at all about the methods used to obtain the information which lead to the issue of the notice,” it reads. “Nor should it be up to the respondent to seek out this information from a copyright owner who chooses not to provide it in the first place.”

iiNet chief executive Michael Malone said he was “relieved” at the outcome.

“Our original contention was upheld that we don’t believe we ever authorised or did anything to encourage customers to breach copyright,” he said. “We’ve won at the lower court, we’ve won at the Federal Court now in the appeal, but all this legal action hasn’t stopped one customer from downloading anywhere in Australia.”

“Same as we said last time, invite the rights holders back, let’s make the content available legally and legitimately so customers can get access to it, and let’s find a better way to be able to police those who don’t do the right thing.”

Malone went on to state that the overall problem of deciding to what extent ISPs can be held liable will have to be solved by the government.

AFACT boss Neil Gane was clearly disappointed at the decision.

“It cannot be right that, in effect, the ISP, who has the power to prevent copyright infringement online and admitted they were taking place, does not share the responsibility to stop them,” he said. “Copyright infringement now goes on unabated on the Internet.”

While Justice Emmett and Justice Nicholas dismissed the appeal, Gane said he was encouraged that Justice Jagot had sided with the movie industry.

“We take heart however, that Justice Jagot found for us and that Justice Emmett said that we were successful on many grounds.

“We will be taking our time now to examine the judgment in detail and consider all of our options.”

It is widely believed that the case will now proceed to Australia’s High Court.

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