The New Piracy Rules: How The Five Strikes Work

A coalition of ISPs has proposed new rules for dealing with Australians thought to have downloaded copyrighted material. It has already generated a lot of controversy and discussion, but just how will the process work?

Picture by David Mertl

You can see the basic details of the plan in our original post. It's worth pointing out that this is nothing more than a proposal at the moment: there's likely to be a lot of arguing over whether it's an appropriate model, who pays to implement it, and how long any trial would run. However, I can't visualise the situation that many Lifehacker commenters apparently imagine: that this will be a voluntary proposal that you'll be able to avoid simply by switching to a different ISP which doesn't subscribe to the scheme.

Long-term, the goal will be for this to be a code of conduct which all ISPs will have to subscribe to, just as they now have to take part in the Telecommunications Industry Ombudsman process. It's unrealistic to assume that ISPs won't want some kind of certainty around this issue; the alternative would likely be even more draconian proposals to make them cut off access for suspected pirates, or endless time-wasting court battles.

The one aspect of the plan we didn't talk through in the original post is how the process would work. Here's the suggested course of events:

A rights holder (a studio or record label) detects what it believes to be an infringement. This would most likely be through monitoring of IP addresses accessing torrents; there are specialised companies which provide these services.

The rights holder identifies which ISP controls that IP address. IP addresses are allocated in blocks, so this is a fairly trivial process. Note though that this doesn't necessarily mean that the address can be associated with a given account holder, especially as most home users don't have fixed IP addresses. (Every time you reboot your router, you'll end up with a new address.)

The rights holder contacts the ISP and sends a 'Copyright Infringement Notice'. This must happen within 14 days of the apparent infringement being detected. If the ISP can't match that address to a customer, it must inform that rights holder within 14 days. If it can match the address, we proceed to . . .

Warning 1: the ISP sends an 'Education Notice' to the customer. This must also happen with 14 days of receipt (which mean a notice could be received up to 28 days after detection). The notice must point out that a potential infringement has been detected, and include links to relevant material about the issue. It will name the studio involved, but won't specify the exact nature of the content (which is, let's face it, good news for porn fans). It must also acknowledgement out that the infringement might not have been performed by the account owner (it could easily be a family member or someone else accessing a hotspot.)

With the first warning, consumers have a 21-day period in which they can dispute the notice with an industry panel or seek their own legal advice. Note that at this point, the customer details have not been supplied directly to the rights holder: only the ISP knows who they are.

The rights holder detects a second apparent infringement from the same IP address within 12 months of the first. It can then contact the ISP, who must . . .

Warning 2: the ISP sends a 'Warning Notice' to the customer. This is similar to the first notice, but with one crucial extra detail: a warning that if further activity is detected, the rights holder might apply to the ISP to discover the details of the customer. As with the first notice, there will be a 21-day grace period.

Warnings 3 and 4: more of the same. Two more warning notices can be sent to customers if additional infringements from the same IP are alleged.

Warning 5: the discovery notice. If additional infringements are alleged after four notices (one education notice and three warning notices), then the ISP will send a 'discovery notice', which tells the account holder that if the rights holder applies to them for account details, they will now be obliged to provide them. The customer then has 21 days in which to dispute the notice, before legal action might (at least in theory) commence. If no response to the discovery notice is received, the ISP will notify the rights holder, who can then if they wish choose to pursue legal action by subpoenaing the ISP for details of the customer. Note that even at this stage, the ISP won't cut off the account holder — any legal dispute will be between the rights holder and the downloader.

The reset period If no further activity is detected on an IP address within 12 months, that address will be 'reset' and treated as if no violations had occurred. If a new allegation of piracy against that IP is raised after that time, it will be treated as a fresh occurrence (beginning with an education notice).

The proposal suggests that during the trial period, no more than 100 notices of alleged infringement per month can be served on any ISP. That's good news for the providers if it happens, but it does mean that anyone who receives one notice is likely to receive more. If you were a rights holder, then making an example of a clear repeat offender might be more appealing than sending first-offender notices to a fresh batch of people.

There are obviously ways of working around detection (using proxies and the like, or simply rebooting your router to avoid having the same IP address). No anti-piracy solution is going to stop everyone. But this proposal does at least have the advantage, compared to the approach rights holders often argue for, of not seeing net access cut off based on allegations of piracy.


Comments

    So if I simply restart my router after each download there is no issue? I assume Usenet and the like are also going to be fine given that changing proxy will supposedly work! If they implement this, it looks like only those people who have no idea how to circumvent it will get caught out? Perhaps the ISP should also mention this in the first warning, OK that last one won't work but it would be interesting to see what happened if they did!

      I thought they were monitering the MAC address of the computer. That makes it look more scary though.

      It won't matter if your IP is changing, as the ISP will find out which account had the infringing IP for each notice, and likely keep records under an account rather than an IP address.

      The first rule of usenet is...

        "It must also acknowledgement out that the infringement might not have been performed by the account owner (it could easily be a family member or someone else accessing a hotspot.)"

        Just leave your network open...claim someone else accessed it...

    Copyright infringement is an issue which deserves attention but I'm just not convinced that choosing the stick (as opposed to the carrot) is really going to be effective against Joe Public pirates, especially in terms of cost-effectiveness.

    Good to see they're putting a ton of money and effort into this instead of, you know, modernising their antiquated distribution models and agreements.

    When you can let me BUY access to The Walking Dead the day it screens in the US, I'd gladly (seriously) pay it! Until then, fuck off.

      +1. Realistically, all you have to do is prove that you are intending to purchase said material, and then it becomes not theft. If you had no intent to purchase something then it's theft.
      Most of the stuff I download is mostly to see if it's any good. If it is, then I'm happy to buy it on DVD for higher quality WHEN IT COMES OUT.
      And there's the clincher, if something was GOOD, and AVAILABLE from day dot on DVD, or as a paid download for a reasonable cost I'd have no problems buying episodes of TV shows straight up.

        This! I download tv shows because they're always available a year later here on DVD/Blu-Ray.

        Example I pirated S1-3 of Burn Notice which I now own on DVD, I am still waiting for Season 4 to come out, which ended a year ago next month.

          This is wrong. You're confusing the criminal offence of "theft" under the various Crimes Acts in each State (which define theft as the dishonest appropriation of property with the intention of permanently depriving the other of it) with the civil wrong of copyright infringement under the Copyright Act.

          This is incorrect for two reasons:

          1) most forms of intellectual property, including copyright, are infinitely reproducible. While you can steal a mobile phone by dishonestly taking it from its owner permanently, you don't permanently deprive the producer of a TV show of their show by downloading it from a torrent. All you're doing is making a copy and the only thing you've permanently deprived them of is potential future income, which isn't property at all. So copyright infringement isn't theft at all, it's, well, copyright infringement.

          2) Copyright infringement is defined under the Copyright Act and your intentions are largely irrelevant when it comes to your liability for infringement. Also remember that copyright infringement is a civil, rather than criminal, offence (though there are criminal penalties if your infringement was outrageously large or for commercial purposes). All that's relevant is that a) somebody owns the copyright in a work; and b) you reproduced that work; and c) you can't rely on one of the narrow defences under the Copyright Act like fair dealing.

          If a copyright owner wants to restrict delay the availability of something they have produced (like a TV show) in Australia for commercial reasons, that is their right under the Copyright Act. It's no (legal) defence to say that they "asked for it" by not making the content available sooner, or that you had an intention to purchase it.

          Now whether you agree with these rights as a matter of policy or consumer rights is another, but legally the acts you describe are infringement.

          You'd be better off stopping after season 3, it really goes down hill in seasons 4 and 5.

      This, a hundred times this.

    What if you restart your router and get the previous ip of an abuser?

      Your ISP would identify you as a different user so it'd be your first warning. The IP change thing is just for the content providers to target the same user over again as they can only file 100 per month to an ISP.

    Question concerning "The rights holder detects a second apparent infringement from the same IP address within 12 months of the first. It can then contact the ISP, who must . . ." If customers using (example) Telstra's Big Pond where they do not have static IP addresses, what are the chances that the IP Address will be linked to that very same person who downloaded an illegal movie again while they are downloading illegal movies again????

    The copyright holders would notify the ISP of the infringing ip address, the ISP would match that to your account (having recorded all the ip addresses you've used) they would warn you and inform the copyright holder of how many infringments this particular (annonymous) infinger has committed. So no, resetting your router will do sweet FA.

      DrBoon, read the proposal. The copyright holders can only send 100 requests a month. That means they're going to be targeting matches on IPs of 2nd,3rd,4th offences of an IP. So reset your router and you'll less likely get a warning. The copyright holder doesn't know you reset your router.

        If they can only make 100 requests a month then the system can be broken easily.

        1. Start a torrent downloading.
        2. Restart your router 100 times to get new addresses.

        They will have 100 IPs and if it ever gets to coart only one infringer and infringed file.

        If a few people a month do this then chances are they will quickly use up their quota on only a few actual instances of copyright infringments.

          You're ignoring the fact that they can pick and choose which IPs they send through -- they don't have to send the first 100 they discover.

            All they have is a list of IPs, the date and time and the file that was downloaded. It is only after they send that list to the ISP that they will discover that the list is junk.

    so does this mean we get all the services ect that the us has.... We don't!!!! so what is the point of this besides meaning that the copyright holders will lose even more money

    Point #1. If a show airs in the US, then is rebroadcast in Australia 2 or more weeks later then it makes no sense to me that I am not allowed to download it. If I wait the 2 weeks and record it on my PVR, I can skip the ads any way. No matter my source, no one makes money from me as I never see ads.

    Point #2.I see the point with movies, but, maybe the movie studios can reduce their pricing so the theatres dont have to charge so much for a ticket. $50 for my wife and I to see a movie with a drink and popcorn to share is ridiculous. Make the ticket cheaper, more people will go, more total revenue.

    I agree with Lemon. Just let us download TV shows and movies. some of us have great home theatre setups and would prefer to pay $15 to rent the movie for 24 hours. or $2 for a TV episode in true 1080p.

    Point #3. Surely ISPs have technology to track which of their accounts uses which IP address at which time. so rebooting your router serves no purpose in anonymising yourself

      Greg, just re point 2 - exhibitors (ie the cinema themselves) take 50% of the price of the ticket in week 1 of release and it goes up from there to about 75%-80% from there. If you've got a problem with ticket prices, blame the theatres themselves.

        Hi Jem,

        I work in a theatre.
        Generally independent cinemas take 45% in the first week and up to 55% once it is outside of contract.

        It IS possible to lower ticket prices, my cinema I work for has a flat rate for tickets that is well below $8 for first release movies.

        Hoyts and Event etc RIP Consumers OFF that is the long and short of it.

      You do realise you don't have to buy the popcorn and drink at the cinema, right? Just buy something cheaper and bring it with you.

      Point #3. You are right that the ISP can still track you even if you've rebooted and got a new IP address. However, the rights holders can't. And considering they only get to send 100 notices a month, they'll be likely to target the same IP addresses again and again. But if you rebooted your router, you won't have the same IP address. So in the right holders books you'll look like a first time infringer. So if they target users they way, you might expect, there'll be way less chance of getting warnings repeatedly if you frequently reboot your router. Of course if you by chance are targeted again, then your ISP will recognize you as a second time infringer (or however many times).

    "Restarting your router as a way of avoiding further action is untrue, an ISP will associate any given IP address to a user account for any given time. When they get an IP notice, they will associate the given IP address to the user account and the warning will be recorded against their account, NOT the IP address.

      "The rights holder detects a second apparent infringement from the same IP address within 12 months"

      That part doesn't really work so well. It sounds like it's up to the ISP to keep count of how many strikes a given user has.

      As they are the only ones who can connect an IP at a given time to a user account.

        ISPs record which IP was leased to which account at a given time because they use it for billing purposes. Keeping track of how many strikes are against each account should be possible, but getting them to take off a strike in the case of error might be tricky.

          Yes. But the rights holder doesn't have access to that (IP => User Account) information.

          So when they "think" you've struck again, it may be you or it may be someone else.

    All this is, so the movie and recording industry can dictate what we can access.. There are trying the same thing in USA for years, but so far it has been blocked over there

    The part with any of these models that concerns me is what happens after Warning 5 (in this model). IE will the penalty for consuming pirated media, continue to be more severe then the penalty for dangerous driving?

    On the whole, I don't really have a problem with the model above. I only really have a problem with ISP's being compelled to give out details of offenders when it's used for mass out of court settlement / extortion campaigns, which are clearly unethical in the extreme, and when the penalty for downloading a song is vastly out of proportion compared to stealing the CD from a shop, and massively out of proportion compared to speeding through a school zone? That's the part I'd really like to see addressed.

      The difference is that copyright infringement is a civil matter, and is dealt with by civil courts. Speeding fines are statutory offences, and the fines are set by government.
      You will find that most judgements in civil courts are way higher than speeding fines because they are based on actual damages. Even seemingly "trivial" offences like slander will cost you maybe $100,000.
      If you were proven to be speeding in a school zone, and caused actual damage (like killing a child) then you would find the penalty is a lot higher!
      Maybe fines for speeding through school zones should be a lot higher?

        Yes, they should be higher although pointless without enforcement.

    LEss poeple would download if the FTA would broadcast HD

      That makes no sense. What does if a television or movie have to do wth HD? Television shows, if they were shown here sooner rather than a year for some shows or NEVER here then people will download less because it's here sooner rather then later or never. Movies, this has (I think) a lot to do with cost of Blu Ray and normal DVDs. Some still charge up to $30 or more for DVDs and Blu Rays can cost up to $40 or more.

      I don't think HD has a thing to do with downloading copyright material.

    Is there anywhere in the proposal to say that the user must have RECEIVED (ie been sent by the ISP) the 1st notice before the 2nd notice can be issued? And then RECEIVED the 2nd notice before a 3rd can be issued? ie be given the opportunity to stop doing such naughty downloading?
    I can see all 5 notices going out to a customer in the first month for 5 different breaches

      You can only receive a new notice every 21 days:
      "The Education Notice will come with a 21 day “Grace Period”, to give the
      Account Holder the opportunity to receive the notice, seek legal advice (if so
      chosen), query or dispute the notice with the Industry Panel, and/or act on its
      contents. The ISP will not be required to take any action (including sending
      further notices) during the Grace Period."

    Do the 5 notices only accumlate if it is the same rights holder for all offences. i.e. If I have 2 copyright infringements from Movie Studio A and 3 from Movie Studio B is that 5 offences or is it 2 and 3 for each respective studio?

      * if it is not

        right the first time, ignore the correction

      The scheme database entries for an individual appears to be cumulative for ALL copyright holders:

      "If, after the expiration of the Grace Period, and within 12 months of an initial
      Copyright Infringement Notice having been received by an ISP in respect of a
      specific Account Holder, the ISP receives a second Copyright Infringement
      Notice from any accredited Rights Holder, the ISP will match the IP address
      from its scheme database and then send a Warning Notice to the relevant
      Account Holder (or a covering letter/email attaching the Rights Holder‟s
      notice)."

    We note that rights holders will be requried to be 'accredited' in respect of their detection technology. It appears that this could add significant costs to smaller rights holders who may view this approach as relatively expensive in lieu of seeking remedies through the Federal Court of Australia. Either way, detection is often outsourced by rights holders to third parties which could see a rise in the demand for these types of organisations.

    Most of the questions here appear to have been addressed in the original proposal.

      Mine hasn't because I would like to know (I understand the writer Angus might not know the answer) if the SAME IP ADDRESS means the same set of numbers (202.168.5.19) or different like same customer because a lot of ISPs using dynamic IP Addresses. I mean if it has to be the SAME then a lawyer will tear it to pieces if you use dynamic IPs :-)

      The line I'm referring to is:
      "The rights holder detects a second apparent infringement from the SAME IP address within 12 months of the first. It can then contact the ISP, who must . . "

        I think that's more covering the copyright holders plans. ie. they're only allowed to issue 100 notices per ISP, so once they have issued one, they're going to want to target the same user again (as they need to get a user on average once every two and a bit months). If you have a fixed IP, they'll get you every time, if you have an IP that changes, they'll likely get somebody else next time (unless you got an IP of somebody that has already been sent an infringement notice), so it'll be that person's first warning.

          So in other words. You could or might only ever get one warning? So keep on downloading if you use dynamic IP addresses? :-)

        As far as I can see, that wording "SAME IP ADDRESS" does not come from the proposal and is Angus's own commentary.

        Copyright infringement notice from the rights holder will include IP address AND date/time of alleged infringement so it doesn't matter what your IP addr is NOW.

        It DOES matter who had that address at the time of the alleged infringement. So, suggestions for attempting to get new addresses from the ISP to avoid detection are misleading. Most DHCP services have a grace period during which you will actually be assigned the same IP address anyway.

        From the rights holder's point of view, if they focus on issuing a notice to the same IP Address they would be getting hit-and-miss results.

    So if you rotate your download activity amongst ISPs every 3 months or so (4 notices * 21 days) , you could work around the 12-month Reset Period and refuse to get "Educated". :-)

    As a movie maker I think it's great we'll be able to recoup some money from people stealing our hard work -- our art. Send the pirates to jail where they belong.

      As noted many times over: Stop waiting for the cash to just roll in, and get with the times.

      Put the movie up for digital distribution via the internet LEGALLY and the very same people you want to see in jail will actually PAY you for it.

      Wake. The fuck. Up.

    Just use private torrents, problem solved

      So, you're saying the "specialised companies" mentioned in this article that track down downloaders are not aware of thus do not have accounts on private torrent trackers?

    Issue: FIrst notice is issued
    Solution: Appeal the decision, tell them some script kiddie got your WEP password and got in, and you've changed the password so it doesn't happen again.

    If you're not great with computers, you could get blamed for something you didn't do or had no idea about.

      Depending on how the code is written, it may not be a valid excuse - from the Warning 1 section above: "It must also acknowledgement out that the infringement might not have been performed by the account owner (it could easily be a family member or someone else accessing a hotspot.)"

      I suspect it could be even simpler than that. Your response: Other persons have access to this account. It wasn't me.

      I don't believe you have any obligation to tell them who it was, even if you know. The situation appears to be analogous to parking infringement notices issued by private companies which are supposedly effectively countered by this means.

    Lol would be nice to be the ISP that doesn't sign up just offer big downloads for good price and try to get all the pirates jumping ship from other ISP's lol you'd probably have so many leaving other ISP's you could offer up paying the exit cost an still turn a very good profit

    Good afternoon, VPN Speaking! Is this only for torrents? What about file hosting companies like FileSonic, etc?

      That comes down to the "Accredited Technologies" they use.

      I've heard of fake torrents (or, torrents hosted by the "right holders") which simply log the IP address of everyone connecting.

      For file sharing sites, they'd either have to have a man-in-the-middle (eg; the ISP is sharing connection information - unlikely), or a deal with the server at the other end (also unlikely except for the very big providers).

        Yup. Back in the old days (well, 2006-ish) you could ID the fake torrents because they had outlandishly high numbers of seeders. They wanted to appear at the top of all lists, so they'd have the tracker report 100 000+ seeders to anybody scraping the data.

        Most big sites are now pretty good at filtering out the fakes, and the right's holders have to go with an old-fashioned technique: Find torrents that probably infringe, join them, and log any IP which attempts to download/upload pieces to you.

        One interesting conundrum that came out of this: If they upload chunks of the torrent, they're guilty of copyright infringement and distribution. If they don't, then how can they prove you actually received any of the movie?

    this isn't going to work.

    the number of ways to circumvent this; combined with the general lack of effort with ISPs (complaints/actually chasing up every incident) and the general dis-satisfaction this is going to cause; is going to prevent this from doing much.

    Better to reasonably price things (steam for example WORKS)

      Yep. I used to pirate PC games all the time. I started using steam last year and I can say in all honesty I haven't pirated a single game since because it's just so much easier and they offer a superior service than pirating the game.

      I'm sure the TV, movies, and music industries could do something similar but they have to realise the service actually has to be superior than just downloading it.

        I have recently started using Spotify (2 months ago) and I can honestly say I haven't pirated any music since, while supporting the music industry with $20/month. I would gladly pay for a similar service for movies/tv shows. Until then...

          I'll need to look into that. I listen to a lot of music and I'm yet to really find something suitable. Though even lately I've not been downloading as much music as I tend to just go to youtube and find a playlist.

          I would definitely be up for an awesome legal way to watch tv shows, hopefully via subscription.

          I just had a look at spotify. Not available in Australia?

        I agree that Steam is easy and it is a great system, but f the prices on steam were reasonable for games like MW3 ($100 compared to $60 in the US) then I'm sure no one would have a problem with it.

        Not that it's Steam's fault either, it's the companies that price and release things to the US cheaper and earlier when there isn't a reason for such a large difference in price. It's not that it's 'easier' to download movies or TV shows than it is to go to the shop, it's just that you'll only be able to watch those movies and shows ages after they've been released in the US. If small pirating teams can distribute files that quickly to so many people, why not large companies?

          True. There is the odd game such as the CoD games that will try get every cent out of you. Even the older ones in the series are still more expensive than new games. For the most part though steam has been wonderful, I've got so many awesome games for under < $20 and some of them are still very new.

          Also when I say service needs to be superior, that also implies we get content at same time as others. I understand there is issues with different regions, but at the same time didn't they get themselves into this? They should work to get themselves out of it. Other industries such as games have for the most part had universal releases with only the few exceptions.

    Eliminate copyright protection for audio, video, and combined audio/video recordings. There is no reason the public should be forced to pay to prop up a broken business model.

    What i'm concerned with is:

    1) What if you've _Previously_ received infringement notices before the implementation of this scheme? Do they count towards them?
    2) What if it is people in (family, say) the house, or even visitors (kids friends, LAN party say...though don't even mention that ;-) ]
    3) What are the prosecution penalties likely to be like? How likely are they to prosecute once having obtained your details? We all know about that woman who downloaded 24 songs off Kazzaa (i think it was that one?) and was fined a million for them
    4) Can a fifth notice, or prosecution prevent an ISP from allowing you to reconnect to their services (same or another ISP)
    5) What if they choose to pursue legal action to find you don't actually have the file...and i'm guessing you said this was all a misunderstanding anyway :-)
    The may mistakenly believe you downloaded it, but what if you didn't (and nobody else using your internet to your knowledge), and thus don't have it...can they still sue you?
    6) Is it possible they might pursue to uncover any furthers acts of copyright you may have commited? Say searching your home, hard drives etc.

    Also. I'd be all for legal ways to get media content. It's not acceptable to expect people to wait six months to a year for TV shows to be released....if ever...i myself, like to watch an episode of a tv series week by week, because i like the suspense, waiting thinking about what happened in the episode and what will happen in the next. I like not having to set aside a time each wednesday 10pm to watch a show....when i have to be up at 5am...or i simply have other things to do. But most importantly i like having access to episodes an hour after they air and watching as soon as i can , because that' when all the americans have watched them and are online discussing the episodes. Which is another reason, netflix, when i thought i might give it a shot today didn't work for me, because they are just as bad not showing a shows latest seasons until after they've aired and have had a dvd release.

    They could easily, EASILY make bundle with an update digital viewing service here in Australia...what with 6 month-1 year later, ad and rerun bloated Foxtel....

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