opinion By participating in a series of highly secret, closed door negotiations with the Government and the content industry over the future of Internet piracy in Australia, national broadband provider iiNet risks losing its integrity and the trust of its customers that it will represent their best interests on the issue.

If you have followed the news in Australia’s telecommunications at all over the past few years, it should be obvious that very few of the organisations currently attempting to shape the future of online copyright infringement in Australia in secret, Government-sponsored meetings held over the past six months have much integrity to lose.

The Australian Federation Against Copyright Theft (and its shadowy network of sister organisations) represents a throng of content producers such as film and TV studios who refuse to make their content available in Australia in the timely and readily consumable fashion desired by their paying customers, yet have repeatedly engaged in legal action or quasi-legal threats against both Internet service providers and those very customers for trying to work around their antiquated distribution model. Plus, the group appears to be pretty much a front for the Motion Picture Association of America, which is known for the same behaviour internationally.

The Internet Industry Association — never a bastion of transparency — has distinguished itself over the past year by gifting the industry with an Internet filtering system which purports to block Australians from accessing child pornography online (itself a laudable aim), but in fact is trivial to circumvent and comes with inherent concerns around transparency, civil oversight and scope creep. Having done so, the organisation exited stage right and left the project in the hands of the Australian Federal Police, which will only discuss the issue when legally forced to by the Senate or by Freedom of Information request.

Telstra, of course, is a multi-headed hydra which tends to display differing degrees of ethical behaviour depending on who its current chief executive officer is (under David Thodey it’s been pretty good; under Sol Trujillo not so much) and which department you’re dealing with, but in general has a solid and well-recorded history of blocking competition in the telecommunications sector (South Brisbane, anyone?) and seeking to hold Australians in the past when it comes to new technology. Little brother Optus is a step up on the ethical scale, but isn’t exactly known for its transparency.

And of course there’s the kind-hearted host, the Attorney-General’s Department itself, which is perhaps best known to Australian technologists for concocting a wild scheme a year or so back which would have seen every email and telephone call in Australia tracked, in a giant database which would be accessible to law enforcement. Joy.

The Communications Alliance is one of the only organisations with a fairly clean record to attend the talks (perhaps because it was only formed a few years ago ago). However, the organisation didn’t disclose the fact that AGD was creating that database, despite knowing about it for some time — which begs the question of what else it wouldn’t disclose. It’s clear the group represents Australian telcos — not their customers.

Add to this heady mix the fact that all parties concerned continue to refuse to disclose any details — at all — regarding what was discussed over four lengthy meetings they have held on the issue of Internet piracy in Australia over the past six months (what information we do have has been dragged out of the department painstakingly by Freedom of Information requests) and you don’t have to be a cynical old journalist like yours truly in order to smell a conspiracy being hatched.

In this cadre of shady dealers known for keeping a backup ace or three in their shorts, national broadband provider iiNet is, to put it mildly, something of an oddity.

Led by a maverick entrepreneur passionate about bringing fast broadband to all Australians, iiNet is a company virtually defined by its steadfastly ethical and transparent operation. Its chief executive, Michael Malone, has openly and honestly answered questions from the press about the company and his views on the industry for several decades now, every time they have asked, and is a regular poster on platforms such as broadband forum Whirlpool and social network Twitter, where he is known for his forthright answers.

In an industry known for its shoddy customer service and disregard for user problems, iiNet’s customer service (in which we may include the call centres of subsidiaries Westnet and Internode) is renowned as stellar.

The company has continually, for two decades now, pushed strongly for positive technological change to benefit consumers, sequentially being at the forefront of launches in areas like ADSL, ADSL2 and ADSL2+, Internet telephony, value-added services such as game and file servers, self-service portals and more — and now it is attempting to drag the content industry into the new millennium through its promulgation of the FetchTV IPTV platform (which, for all its faults, is a decent effort).

And perhaps more than anything, iiNet is known for its defence of its customers in the multi-million-dollar lawsuit it is fighting against AFACT. All AFACT wants is for iiNet to take responsibility for the file-sharing habits of its customers; whereas all iiNet wants is for AFACT to respect the actual laws of the land in Australia and prove that they’re doing anything wrong, before it takes action. It sounds like common sense — but common sense rarely enters into the online copyright infringement debate — as we’ve previously chronicled, self-interest is more the norm.

With all this in mind, the question asks itself; Why the heck is iiNet having closed door discussions on the issue of Internet piracy with a group which includes its biggest competitors, organisations which are currently suing it, and a government agency which is known for concocting gargantuan conspiracies to monitor and control the Australian Internet? That’s exactly the question Whirlpool user DNAlchemist asked iiNet yesterday — or, to put it in his words: “Is this really a consultation, or are you just being asked whether or not you’d prefer lubricant?”

The answer came rapidly.

“Well, who is better qualified to listen to what rights holders want?” replied iiNet regulatory chief Steve Dalby. “We’ve probably given it more thought than any other ISP and understand the implications and flow-on issues (of any suggestion) as well, if not better than anyone.” He continued: “Businesses and governments conduct meetings every day of the week. It’s not usual for those meetings to be public. Given the width of the gap between the parties, I wouldn’t say any ‘agreement’ is imminent. Nevertheless, the answer is – yes, they’ll remain private – not that the existence of the discussions have ever been a secret.”

*cough* come again?

For Dalby to claim that these discussions have never been a secret is patently absurd. We only know that they exist because their existence was leaked to the media six months ago. Since then, I personally have been engaged in a dogged battle with the Attorney-General’s Department to get any information about them at all. We only found out yesterday that no less than four meetings (not two, as had been thought) had been held between September and February this year. Meetings which iiNet blithely attended, discussing matters of which the public knows nothing, but which will affect them dramatically.

As Delimiter chronicled yesterday, AGD has used a complex series of legal arguments to prevent almost all records of the meetings from reaching the public’s eye. It has applied the black marker to all notes taken by government workers at the meetings, the identities of those who attended, the agendas, any material handed out, and so on. This week it even claimed it had no record of who attended the February confab — despite the fact that the meeting was held just a month ago.

And yes, iiNet is qualified to discuss what AFACT and the rest of the content industry wants to happen on the issue of Internet piracy. It bloody well should be — after all, it’s been listening to AFACT drone on and on in first the Federal Court, and now the High Court, about what it wants for several years now. In fact, given the fact that AFACT itself tends to be fairly stupid as an organisation, I would say there’s a solid chance that iiNet now knows a lot more about what AFACT wants than AFACT does itself.

But what appears to have been left out of Dalby’s somewhat blithe response to this issue is a few … pesky questions about the ethics of what iiNet is doing right now.

Can you imagine the response of iiNet’s legal team, upon being told that iiNet was planning to sit down for coffee at Casa de AGD with AFACT, the very organisation which is currently suing iiNet in the High Court? I’m pretty sure it wasn’t something like: “Uh, sure, Steve — that sounds like a great idea. Pass the bagels.”

And given the derisive statements which senior government figures such as Communications Minister Stephen Conroy have already made about that same case, you can imagine the response of the sitting judges of the High Court, upon learning that the two combatants in a case which will set a substantial precedent in Australian intellectual property law, are sitting down every month or so for coffee and a chat, along with the department which is principally responsible for writing legislation in the space. I’m pretty sure it wasn’t something like: “Uh, sure, guys — you go ahead and discuss the issues. I’m sure there’s no chance to prejudice the case or to spur new legislation to override our High Court judgement.”

Personally, I am appalled that iiNet ever agreed to participate in these talks, given the blatantly obvious conflict of interest which they represent with regard to its High Court case against AFACT. I find it very hard to believe that the company has not received several stern pieces of advice on the matter from its legal counsel — advice which it then blithely ignored.

Every stakeholder in this issue — from AFACT to iiNet to other ISPs and the Government — acknowledges that the pending High Court decision in the #iitrial will have a dramatic impact on the online copyright infringement landscape in Australia. I can understand why the content owners and even the Government (which so often seems to play along to their tune a little too closely) is in favour of undercutting that decision with a series of concurrent discussions on the sidelines. But why does iiNet seem to feel the same way?

On a separate note, one has to wonder how iiNet’s customers feel about the issue.

iiNet has always taken the position that Internet piracy is not a legitimate activity, and it hasn’t ever explicitly defended the practices of its big-downloading customers in this area. On the face of it, the ISP’s High Court defence has transparently been about allocating responsibility for those illegal downloads where it belongs — on customers’ heads — rather than on iiNet’s head as a simple traffic intermediary. However, there is no doubt that in practice, the ISP’s high quota broadband plans at least enable Internet piracy, even if they don’t explicitly encourage it. And the ISP’s actions in forcing the burden of proof for allegations of Internet piracy back on content owners (rather than simply forwarding on infringement notices to its customers, as ISPs like Exetel do) have also had the practical effect of allowing its customers to feel ‘safe’ in their illicit BitTorrenting.

“We don’t talk about piracy” has been the unspoken agreement between iiNet and its customers, as the issue was swept under the industry radar. This approach has served the company — and many other Australian ISPs — well. Customers have been able to obtain the content they often can’t get otherwise in the format and timeframe they want, while ISPs have reaped the benefits of growing broadband consumption. And the whole deal has been positioned as the right approach to take to force the content owners to actually … make their products available for sale in a timely fashion and in a manner that consumers want to buy (rocket science, I know).

AFACT’s lawsuit threatened to throw a spanner in the works of this cozy relationship, but iiNet’s staunch — and so far, successful — defence in the Federal Court has reassured customers that the unspoken bond between them and their ISP was still intact. iiNet’s legal team would be the public face of their demand that the content owners pony up and make their content available legally, in a decent video format, through a platform like Apple’s iTunes — and at the same time as it’s available in countries such as the US. And, of course, iiNet’s customers would feel comfortable that their fairly high-priced broadband plans were paying for more than gigabytes — they were also supporting the right philosophical position.

By participating in the Government’s secret talks on the issue, however, iiNet is signalling to those same customers that its tacit understanding with them is in fact … null and void. In fact, did something so nebulous ever exist in the first place?

Now, to be honest, I’m not really that surprised.

As a company, iiNet is growing up. It’s grown so fast, and come so far, in fact, that it’s now becoming just another company — with the same multi-faceted, complex approach to issues, the same internal divisions which hamstring its operations, the same regulatory and financial constraints, and above all, the same self-interest in everything it does. Idealism very rarely survives in such highly capitalistic environments — and it never thrives. As we’ve seen in recent weeks with iiNet subsidiary Internode, even the staunchest and brightest of companies managed by steadfast individuals may falter in the transparency with which they conduct their operations. In fifty years, there may come a time when future journalists try and work out just when iiCorporate (or the iiBorg, as it is increasingly known) ever had a human face.

But that doesn’t make it right.

iiNet’s staunch defence in the AFACT trial saw the ISP painted as its customers’ white knight — standing upright in shining armour and yelling defiance at the unclean copyright hordes. It is unseemly — and disturbing — for that same bright figure to be skulking around the back corridors of the Attorney-General’s Department clasping sweaty palms with those same opponents — as well as the great broadband evil in the form of industry titan Telstra.

Australia’s telecommunications industry is already littered with characters of questionable integrity. I don’t want to see iiNet’s name added to that (growing) list.