Australian ISPs say that the government should employ a UK-style "follow the money" approach to deal with pirate sites. Site blocking and warnings might also be entertained, as long as throttling and disconnecting users is taken off the table. Rightsholders will have to pick up the tab, however.

Following last week’s leaked draft from Hollywood, Aussie ISPs including Telstra, iiNet and Optus have published their submission in response to a request by Attorney-General George Brandis and Communications Minister Malcolm Turnbull.

While the movie industry’s anti-piracy proposal demonstrates a desire to put ISPs under pressure in respect of their pirating customers, it comes as no surprise that their trade group, the Communications Alliance, has other things in mind.

The studios would like to see a change in copyright law to remove service providers’ safe harbor if they even suspect infringement is taking place on their networks but fail to take action, but the ISPs reject that.

ISP liability

“We urge careful consideration of the proposal to extend the authorization liability within the Copyright Act, because such an amendment has the potential to capture many other entities, including schools, universities, internet cafes, retailers, libraries and cloud-based services in ways that may hamper their legitimate activities and disadvantage consumers,” they write.

But while the ISPs are clear they don’t want to be held legally liable for customer piracy, they have given the clearest indication yet that they are in support of a piracy crackdown involving subscribers. Whether one would work is up for debate, however.

Graduated response

“[T]here is little or no evidence to date that [graduated response] schemes are successful, but no shortage of examples where such schemes have been

distinctly unsuccessful. Nonetheless, Communications Alliance remains willing to engage in good faith discussions with rights holders, with a view to agreeing on a scheme to address online copyright infringement, if the Government maintains that such a scheme is desirable,” they write.

If such as scheme could be agreed on, the ISPs say it would be a notice-and-notice system that didn’t carry the threat of ISP-imposed customer sanctions.

“Communications Alliance notes and supports the Government’s expectation, expressed in the paper that an industry scheme, if agreed, should not provide for the interruption of a subscriber’s internet access,” they note.

However, the appointment of a “judicial/regulatory /arbitration body” with the power to apply “meaningful sanctions” to repeat infringers is supported by the ISPs, but what those sanctions might be remains a mystery.

On the thorny issue of costs the ISPs say that the rightsholders must pay for everything. Interestingly, they turn the copyright holders’ claims of huge piracy losses against them, by stating that if just two-thirds of casual infringers change their ways, the video industry alone stands to generate AUS$420m (US$392) per year. On this basis they can easily afford to pay, the ISPs say.

Site blocking

While warning of potential pitfalls and inadvertent censorship, the Communications Alliance accepts that done properly, the blocking of ‘pirate’ sites could help to address online piracy.

“Although site blocking is a relatively blunt instrument and has its share of weaknesses and limitations, we believe that an appropriately structured and safeguarded injunctive relief scheme could play an important role in addressing online copyright infringement in Australia,” the Alliance writes.

One area in which the ISPs agree with the movie studios is in respect of ISP “knowledge” of infringement taking place in order for courts to order a block. The system currently employed in Ireland, where knowledge is not required, is favored by both parties, but the ISPs insist that the copyright holders should pick up the bill, from court procedures to putting the blocks in place.

The Alliance also has some additional conditions. The ISPs say they are only prepared to block “clearly, flagrantly and totally infringing websites” that exist outside Australia, and only those which use piracy as their main source of revenue.

Follow the Money

Pointing to the project currently underway in the UK coordinated by the Police Intellectual Property Crime Unit, the Communications Alliance says that regardless of the outcome on blocking, a “follow the money” approach should be employed against ‘pirate’ sites. This is something they already have an eye on.

“Some ISP members of Communications Alliance already have policies in place which prevent any of their advertising spend being directed to sites that promote or facilitate improper file sharing. Discussions are underway as to whether a united approach could be adopted by ISPs whereby the industry generally agrees on measures or policies to ensure the relevant websites do not benefit from any of the industry’s advertising revenues,” the ISPs note.

Better access to legal content

The Communications Alliance adds that rightsholders need to do more to serve their customers, noting that improved access to affordable content combined with public education on where to find it is required.

“We believe that for any scheme designed to address online copyright infringement to be sustainable it must also stimulate innovation by growing the digital content market, so Australians can continue to access and enjoy new and emerging content, devices and technologies.

“The ISP members of Communications Alliance remain willing to work toward an approach that balances the interests of all stakeholders, including consumers,” they conclude.

Conclusion

While some harmonies exist, the submissions from the movie studios and ISPs carry significant points of contention, with each having the power to completely stall negotiations. With legislative change hanging in the air, both sides will be keen to safeguard their interests on the key issues, ISP liability especially.