In common with many other countries around the world, in recent years Australia has struggled with the issue of unlawful file-sharing. The messy and still-unfinished legal battle between AFACT and ISP iiNet has further highlighted the rift between rightsholders, the Internet industry and its subscribers, and their often conflicting needs.

But now a joint proposal from the Communications Alliance and ISPs including Telstra Bigpond, iiNet, Optus, iPrimus and Internode, with collaboration from telecoms company AAPT, Ericsson Australia and the Internet Industry Association (IIA), lays out what the contributing parties believe is a workable middle-ground.

The 14-page proposal, titled ‘A Scheme to Address Online Copyright Infringement’, puts forth the framework for a “Notice Scheme” which aims to educate Internet subscribers when their connections are flagged as engaging in copyright infringement.

Unlike schemes elsewhere, particularly in neighboring New Zealand, there is no ‘graduated response’ being proposed by the ISPs for dealing with persistent infringers – that means no throttling, suspensions or disconnections. Instead, a warning notice scheme “with a strong emphasis on educating consumers” would be put in place, operating as follows:

The responsibility for monitoring file-sharing networks would fall at the feet of rightsholders who would only be able to do so using pre-approved and tested systems. Notices would have to be sent to ISPs within 14 days of an infringement being logged and ISPs would then have another 14 days to match the provided IP address with a customer account and send out an infringement notice.

Subscribers being contacted about a first instance of illicit file-sharing would receive an ‘Education Notice’ noting that an infringement had taken place on the account, but would not mention the content of the material that was shared. It is not clear why this omission was put in place, but one might imagine that those sharing pornography would be pleased at the inclusion of such a safeguard. The notice would also include information on where to obtain legal content.

After receiving an Education Notice, a 12 month period would then follow where if a subscriber was caught infringing again they would receive a ‘Copyright Infringement Notice’ (CIN). This time the content shared would be detailed in the notice.

When an account holder has been sent an Education Notice and three CINs, their ISP would then send a new notice called a ‘Discovery Notice’. These would note that the account holder has been unresponsive to previous notices, that rightsholders have been informed of this fact, and that further action could follow. It is at this point that the rightsholders would have to decide whether to get a court order to obtain the identity of the account holder in order to sue them under existing legislation.

At every step of the way, from Education, to Infringement to Discovery Notices, subscribers would be given opportunity to appeal.

“We believe the Notice Scheme can greatly reduce online copyright infringement in Australia, while protecting consumer rights, educating consumers about how to access legal online content and helping rights holders to protect their rights,” said Communications Alliance CEO, John Stanton.

“Equally important is the need for rights holders to ensure that consumers have access to legal and affordable content online, to reduce the motivation to source content in ways that might be illegal.”

Stanton notes that Australians have turned to illicit file-sharing because accessing material through official channels often means a wait of months compared with the release schedules of the rest of the world

“This difficulty, combined with a proliferation of access technologies, such as file-sharing software, has reportedly seen a growth in the frequency of unauthorised access to online content and breaches of copyright laws,” he notes.

The ISPs propose that the scheme runs for an 18 month trial to be followed by an independent evaluation on whether it has successfully influenced consumer behavior and if any changes should be made.

At this point some readers might be thinking that the proposals appear much more reasonable than those seen elsewhere, but it should be noted that while the ISPs may have thrown their ideas into the ring, they are just that – their ideas.

The other side of the debate – the rightsholders – aren’t mentioned as being party to these proposals even though the Communications Alliance statement says that the education-based Notice Scheme “flows” from discussions held during 2011 between ISPs, the government, and rightsholders.

And there are always problems. When one looks at the number of warnings the ISPs are offering to send out they are fairly limited. No ISP party to this proposal will be required to send out any more than 100 in a month, and all ISPs combined aren’t offering to send out any more than 10,000 total throughout the entire 18 month trial. Further, the thorny issue of apportioning costs is yet to be hammered out and they will be substantial.

It will be interesting to see what the likes of AFACT have to say about the proposal. On track record they will want any agreement balanced more in their favor and the above will be just the starting point for their negotiations.

Full details of the proposed scheme can be obtained here (pdf)

Source: Aussie ISPs Propose Anti-FileSharing Warning Notice Scheme

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In February 2011, the US Copyright Group filed a new mass lawsuit on behalf of Nu Image, the studio behind action movie The Expendables. Initially this case included 6,500 John Doe defendants, but eventually swelled to a massive 23,322 sharers.

Then last month, with the ooos and aaahs barely silenced, along came another beefed-up lawsuit, this time on behalf of Voltage Pictures, the studio behind The Hurt Locker. A record-breaking amount of people are set to be targeted as a result of this single action, an incredible 24,583 in total.

But while these US lawsuits generate huge amounts of anger among opponents, and perversely impress with their sheer scale, over in Europe they’re really showing how it’s done. Germany is the birth place of these pay-up-or-else schemes and with their huge experience they’re making the United States look like rank amateurs.

According to mind-boggling new data released by Internet industry association ECO and linked by Janko Roettgers, German ISPs are handing over the personal details of their subscribers to rightsholders at the frightening rate of 300,000 every month. That’s more than the United States has managed in total – ever.

ECO says that the letters, which demand anything up to $1700 to make legal action go away, coupled with rising availability of legal content, have caused a drop in unlawful file-sharing of some 20% since 2008.

These figures, ECO say, make the case for not adopting measures to force ISPs to block file-sharing sites, measures which they say require “deep intervention” into the basic rights of the population.

“Blocking methods, such as those planned and advertised by the European Commission last week at the e> G8 Forum in Paris are unnecessary,” ECO said in a statement.

“First, there are many more legal and user-friendly products available now than several years ago. On the other hand, this shows a consistent approach on illegal downloads without resorting to blocking,” they continue.

However, ECO’s Oliver Süme notes that the cash demands levied by rightsholders are sometimes excessive, and a simple telling-off could achieve a useful effect.

“In most cases, a warning letter would be enough,” said Süme. “It does not always have to be a demand for several hundred euros.”

While rightsholders are making huge amounts from these settlement schemes from increasing numbers of threatening letters sent, and organizations like ECO are reporting drops in illicit sharing as a result, that’s not necessarily the full picture.

The letters are only sent out to Internet subscribers using P2P services to obtain unauthorized content, and it is unclear how many users have switched to untraceable services, such as cyberlockers, or are now taking measures to conceal their identities.

What is clear though is that if site blocking measures are introduced, file-sharing volumes will be hit, at least in the short-term. The effect of that is that fewer people will sitting ducks for these settlement letters, which have become a useful source of revenue for rightsholders. For some, reduced piracy could mean reduced revenue.

Source: Anti-Piracy Groups Send 3.6 Million File-Sharing Cash Demands

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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.

TorrentFreak

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It’s day thirteen in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two, day three, day four , day five, day six, day seven, day eight, day nine, day ten, day eleven, day twelve.

The case continued Friday in the Federal Court, with iiNet’s chief regulatory officer, Steve Dalby, taking the stand following his first appearance Thursday afternoon.

Yesterday, Dalby recalled having difficulty in understanding some of the terminology utilized by AFACT in the infringement notice spreadsheets it submitted to iiNet.

Dalby told AFACT barrister Tony Bannon that iiNet had told AFACT there was an issue with some items being unclear in the spreadsheets.

“There was no legend associated with this spreadsheet. I had to make an assumption. We asked AFACT for more information,” ITNews quotes Dalby as saying.

Bannon then criticized Dalby for not being specific and expecting AFACT to guess at which terms were not understood, but Dalby pointed out that he expected AFACT to contact the ISP for clarification.

Further discussion took place on the issue of IP addresses and how iiNet allocates them to customers. Time and again, Dalby explained that IP addresses are allocated to a customer account and they do not necessarily represent any particular computer that the customer may use.

In what is becoming a recurring theme, today Dalby told the court that iiNet had no intention of forwarding AFACT’s copyright infringement notices to its customers purely on their allegations.

“Our position was that we should not be doing AFACT’s work,” said Dalby. “If we had received authorization by way of court order, that would have changed our position.”

AFACT went on to tender a draft e-security code of practice from the Internet Industry Association (IIA) created earlier this year. It proposes that in future, ISPs could contact, and maybe even disconnect subscribers, who have malware-ridden computers which negatively affect networks. Despite Justice Cowdroy indicating that its relevance was peripheral to the case and wouldn’t but much use when he comes to make his decision, it was allowed.

Dalby said he believed that iiNet had not been involved in the draft and he was personally unfamiliar with it. CW reports that he had been quoted on the issue in the media, but Dalby said that it was a regular occurrence for the press to call him to comment on issues he was not yet familiar with, and in this particular case his comments were “neutral and non-committal”.

In September we reported that Australia’s Internet Industry Association (IIA) felt it had something to offer these court proceedings. IIA applied to be amicus curiae, a ‘friend of the court’, but AFACT objected, insisting the group would not be impartial and would favor iiNet.

The decision on whether this will be allowed or not has been delayed until next week.

In an indication that AFACT still objects to an IIA appearance, Bannon said that “….there’s a conceivable possibility they don’t want to add anything other than to say ‘hear, hear’,” apparently to the amusement of the court.

AFACT barristers are scheduled to make their closing statements next Monday afternoon.

Article from: TorrentFreak, check out our new blog at FreakBits.

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It’s day eight in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two, day three, day four , day five, day six, day seven, day eight.

Today, iiNet CEO Michael Malone was questioned at length over dealings he had with Westnet, another ISP which was acquired by his company for AUS $81 million in May 2008.

Westnet had developed an automated system to pass on infringement notices from copyright holders to its customers, a process which Malone earlier described as “making more work for no benefit,” and was said to be scathing in defense of due process and consumer rights.

“Taking the opposing argument, a random third party is lodging an unsubstantiated accusation against a customer and you’re passing it on?” wrote Malone in an email to Westnet, continuing, “Your current approach is doing damage to the industry and iiNet’s position on this matter.”

According to itNews, today Malone admitted he had “hit the roof” when he had discovered Westnet’s policy on infringement notices.

When any company acquires another there is often a need to standardize procedures and policies, and with iiNet and Westnet the position was no different. Malone said that whenever he found differences in policies between the two companies he took steps to bring those of Westnet into line with those at iiNet. He also stated that he was unaware that Westnet had failed to follow his instructions and adopt iiNet group policy following the acquisition.

One of the reasons he sought to change the Westnet policy, he said, was to bring the company into line with the position held by the Internet Industry Association on the issue.

Cross-examining Malone on iiNet’s role in providing a broadband service which enabled users to share movies using BitTorrent, senior counsel Tony Bannon for the movie industry referred to infringement notices sent to iiNet for the Sony movie, Pineapple Express.

According to CW, Malone responded that as a mere service provider, iiNet had no way of knowing if any of its customers were engaged in copyright infringement, but could confirm that the individual who allegedly committed the breaches was still an iiNet customer.

The company was not aware, however, if the customer continued to breach copyright.

The case continues tomorrow.

Article from: TorrentFreak, check out our new blog at FreakBits.

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It’s day eight in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two, day three, day four , day five, day six, day seven), day eight.

Today, iiNet CEO Michael Malone was questioned at length over dealings he had with Westnet, another ISP which was acquired by his company for AUS $81 million in May 2008.

Westnet had developed an automated system to pass on infringement notices from copyright holders to its customers, a process which Malone earlier described as “making more work for no benefit,” and was said to be scathing in defense of due process and consumer rights.

“Taking the opposing argument, a random third party is lodging an unsubstantiated accusation against a customer and you’re passing it on?” wrote Malone in an email to Westnet, continuing, “Your current approach is doing damage to the industry and iiNet’s position on this matter.”

According to itNews, today Malone admitted he had “hit the roof” when he had discovered Westnet’s policy on infringement notices.

When any company acquires another there is often a need to standardize procedures and policies, and with iiNet and Westnet the position was no different. Malone said that whenever he found differences in policies between the two companies he took steps to bring those of Westnet into line with those at iiNet. He also stated that he was unaware that Westnet had failed to follow his instructions and adopt iiNet group policy following the acquisition.

One of the reasons he sought to change the Westnet policy, he said, was to bring the company into line with the position held by the Internet Industry Association on the issue.

Cross-examining Malone on iiNet’s role in providing a broadband service which enabled users to share movies using BitTorrent, senior counsel Tony Bannon for the movie industry referred to infringement notices sent to iiNet for the Sony movie, Pineapple Express.

According to CW, Malone responded that as a mere service provider, iiNet had no way of knowing if any of its customers were engaged in copyright infringement, but could confirm that the individual who allegedly committed the breaches was still an iiNet customer.

The company was not aware, however, if the customer continued to breach copyright.

The case continues tomorrow.

Article from: TorrentFreak, check out our new blog at FreakBits.

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It’s day six in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two, day three, day four and day five).

After Justice Cowdroy allowed several documents to be used in court yesterday which were used by iiNet’s legal team to cross-examine AFACT witnesses, senior counsel Tony Bannon for the movie industry said he wants to subpoena the Internet Industry Association (IIA) for documents it says relates to meetings held with ISPs in 2006/2007 on how to handle p2p copyright infringement.

The documents are required for further cross-examination of witnesses. Earlier IIA had applied to be a friend of the court, an application to which AFACT objected.

Also revealed in court today is that iiNet is on the brink of launching an online kids entertainment service. Nothing particularly unusual about that, until one learns of iiNet’s business partner – TV company Village Roadshow, one of the litigants in the case. The content will be free to view and iiNet won’t even count the bandwidth its customers use on these downloads.

AustralianIT notes that iiNet was due to announce the service in around a month’s time, but will now launch it this weekend.

A computer forensics investigator who was previously a key witness in the 2004 KaZaA trial, was called by iiNet’s legal team today. Nigel Carson, a key witness for AFACT, was questioned on whether an IP address alone is enough to identify an individual infringer.

Carson admitted that any ISP account could have multiple users in the same household and could have other unauthorized 3rd-party users if a wireless router was compromised.

He further admitted that to accurately identify a precise individual, a court order and police action could be required to interview account holders and other individuals living at the address.

The open court session was also closed for the continuing cross-examination of DtecNet’s CTO Kristian Lockegaard which began yesterday.

The case continues to the end of this week, where there will be a two week gap before the court reconvenes for a further two weeks.

Article from: TorrentFreak, check out our new blog at FreakBits.

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It’s day six in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two, day three, day four and day five).

After Justice Cowdroy allowed several documents to be used in court yesterday which were used by iiNet’s legal team to cross-examine AFACT witnesses, senior counsel Tony Bannon for the movie industry said he wants to subpoena the Internet Industry Association (IIA) for documents it says relates to meetings held with ISPs in 2006/2007 on how to handle p2p copyright infringement.

The documents are required for further cross-examination of witnesses. Earlier IIA had applied to be a friend of the court, an application to which AFACT objected.

Also revealed in court today is that iiNet is on the brink of launching an online kids entertainment service. Nothing particularly unusual about that, until one learns of iiNet’s business partner – TV company Village Roadshow, one of the litigants in the case. The content will be free to view and iiNet won’t even count the bandwidth its customers use on these downloads.

AustralianIT notes that iiNet was due to announce the service in around a month’s time, but will now launch it this weekend.

A computer forensics investigator who was previously a key witness in the 2004 KaZaA trial, was called by iiNet’s legal team today. Nigel Carson, a key witness for AFACT, was questioned on whether an IP address alone is enough to identify an individual infringer.

Carson admitted that any ISP account could have multiple users in the same household and could have other unauthorized 3rd-party users if a wireless router was compromised.

He further admitted that to accurately identify a precise individual, a court order and police action could be required to interview account holders and other individuals living at the address.

The open court session was also closed for the continuing cross-examination of DtecNet’s CTO Kristian Lockegaard which began yesterday.

The case continues to the end of this week, where there will be a two week gap before the court reconvenes for a further two weeks.

Article from: TorrentFreak, check out our new blog at FreakBits.

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