How Australian ISPs Will Start Busting Users For Piracy

Australia is now a lot closer to having a US-style system where your internet service provider (ISP) would be required to send notices if you’re suspected of torrenting movies, TV shows and other copyright material. A new draft code developed by ISPs outlines how that “three strikes” process will work.

Pirate picture from Shutterstock

To be clear, ISPs have no choice about this — current Australian federal government policy requires them to develop and implement a code to do this before September 1 2015. If that doesn’t occur, government legislation would be introduced, and it’s a fair bet that this would be skewed entirely in favour of US studios and impose more costs on providers. The draft version of the code is being made public for comment now so it can be submitted in final form to the Australian Media and Communications Authority (ACMA) by April.

Here’s the one paragraph summary of the proposal:

The Copyright Notice Scheme Industry Code creates a Copyright Notice Scheme through which residential fixed internet users who are alleged to have infringed copyright online will receive an escalating series of infringement notices designed to change their behaviour and steer them toward lawful sources of content. The Scheme has a strong emphasis on public education and does not contain explicit sanctions against internet users, but does provide for a ‘facilitated preliminary discovery’ process through which ISPs can assist Rights Holders who may decide to take legal action against persistent infringers.

It could be much worse. Some rights holders have pushed a scheme that goes further, with persistent infringers having their accounts terminated, but the industry has resisted that. Under this proposal, studios would still have to sue individuals accused of piracy, a strategy which has sometimes spectacularly backfired in the US. Let’s look at what the draft code suggests.

How It Works

The code would be administered by the ominous-sounding Copyright Information Panel. This would have five members, each serving for two years. Two would come from the ISP community, two from the rights holder community and one from consumer group ACCAN.

Under the code, a standardised format for email copyright notices will be developed. If a rights holder (usually the owner of the copyright in a movie/TV show/song) believes they have detected illegal downloading of their work and can identify the relevant user’s IP address as coming from a particular provider, they can send that standardised copyright notice to the ISP. This must occur within seven days of the alleged infringement, and include the date, time and time zone.

The ISP then has to contact the account holder with an email (also in standardised form) telling them of the alleged infringement. That notice will include links to legal sources of content (hopefully in a more useful format than the current and awful Digital Content Guide). Details of the account holder are not shared with the rights holder at that point, however.

The notices work on a three-strikes model, with each letter becoming progressively nastier. (The three stages are branded Education, Warning and Final.) After you have been sent a notice, there’s a 14-day period in which any additional detected infringing activity should not result in a second notice. That still means you could receive three notices in just over a month, however.

If three notices are sent in a 12-month period, then ISPs are supposed to “facilitate an expedited discovery process to assist the Rights holder to enforce its copyright”. What does that mean? Your address is eventually handed over, and the studio might choose to sue you or (more likely) demand a payment for the infringement. Note that it’s the individual, not the ISP, held responsible — by signing up for the Code and following its provisions, ISPs are indemnified from legal action against them by copyright holders over alleged infringements.

Consumers can lodge a “challenge notice” and dispute any claims of infringement, but only after a Final notice has been sent (and no more than 28 days after it is received). You can dispute any of the three notices when you lodge a challenge). You have to pay $25 to lodge a challenge, but the sum will be refunded if you’re successful. The process happens entirely in writing, with your submission and responses from the rights holder and ISP considered by an adjudication panel.

There would be a review of the code’s effectiveness after 18 months, and then every 5 years after that. 5 years seems rather ambitious given how quickly technology changes, though there is provision for additional reviews if “significant developments” affect how the code works.

Lots To Argue Over

A lot of crucial elements are still missing from the draft. In particular, there’s no specification of how the scheme would be funded, which is one of the major points of contention. ISPs argue that they shouldn’t be forced to fund copyright enforcement, but the studios aren’t queueing to open their wallets to contribute either.

There’s also an argument over the minimum size an ISP would have to reach before being required to sign up for the code, though clearly the major players (Telstra, Optus, iiNet, TPG) would have to be involved. Another point of dispute is the maximum number of notices that any ISP will be obliged to process in any calendar month — providers understandably want a limit set so they’re not swamped with automated notices.

Nowhere in the code is there any discussion of the obvious issue: how will this help if people mask or spoof their IP addresses to avoid detection? Presumably that’s just in the too-hard basket.

Comments are being invited on the draft until 23 March 2015. While these will inform the final draft, we suspect it’s the behind-the-scenes negotiations over the contested aspects that will prove more interesting.

Communications Alliance