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.

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