Why Forcing ISPs To Follow A Code Won't Stop Illegal Downloads

Attorney-General George Brandis and Communications Minister Malcolm Turnbull announced yesterday that they expect internet service providers (ISPs) to work with copyright owners to help police infringement.

Picture: m01229

ISPs will have to agree to a new industry code that passes on warning notices to their customers when copyright owners make allegations of infringement against them. They will also have to start handing over the personal details of subscribers who have several allegations against their name.

The government also plans to introduce an obligation for ISPs to block access to file sharing websites such as The Pirate Bay.

These announcements are better than the government's last attempt to force ISPs to negotiate, which would have made a mess out of copyright law for everyone. But there are still real problems, and the measures will probably increase the cost of internet access for little, if any, benefit.

A quick negotiation

ISPs and copyright owners have 120 days (over the holiday period) to come to agreement on an issue that they have been at loggerheads over for the past five years.

The government hasn't given ISPs much negotiating power, either. The clear threat is that if ISPs don't give the industry what it wants, the government will do it for them.

These types of industry codes can be an effective way to regulate, but the only way they will reflect the overall public interest is if consumer groups are also given a seat at the negotiating table. We also need transparency and continual monitoring to ensure the scheme is not being abused, and public interest groups must have the power to effectively protect end users.

In this proposal, consumer groups are not invited, and rightsholders hold all the power.

Three strikes and you're out?

Yesterday's press release is careful to distance itself from claims that this new scheme will include a termination regime, without actually ruling it out. But because of the way Australian copyright laws work, there is a good chance that ISPs will also start terminating access of people who have received multiple allegations of infringement.

In the recent iiNet case, the High Court ruled that ISPs were under no obligation to go out of their way to protect the rights of copyright owners. The High Court explained that there was no basis for ISPs to be certain that the allegations made by copyright owners were true.

The Court also noted that there was no evidence about whether warnings would actually deter infringements, and ruled that it would be unreasonable to disconnect people from the internet purely on the unverified allegations of copyright owners.

This announcement is the result of sustained lobbying to overturn the effects of the iiNet decision. There is a pretty good chance that if ISPs agree to a code that only requires them to warn users, not terminate their connections, then they won't be liable.

But our law already includes a provision to ensure that ISPs are not liable in these circumstances. The "safe harbours" provide ISPs with a limited immunity, on the condition that they terminate the accounts of "repeat infringers".

Smart ISPs will want some certainty that they won't be liable in a future lawsuit. Their best method of protecting themselves is to implement a policy to cut people off the internet after they receive a set number of notices.

But there are problems with notices. Allegations of infringement are just that; they're not proof. History has shown that notice-based systems get abused.

We have seen allegations that a laser printer downloaded Iron Man and Indiana Jones. The Chilling Effects Clearing House has thousands of examples of people who have used copyright threats to bully critics, silence their political opponents or shut out their business competitors.

'Speculative invoicing'

The code will include a way for copyright owners to demand the personal details of people who have received multiple allegations of infringement. Presumably, this is to stop them from having to go to the trouble of proving the reliability of their methods in court, like iiNet is making the owners of Dallas Buyers Club do now.

The problem is, nobody wants to actually sue individuals. Copyright owners want warnings first, because they're cheap to send out – particularly if they can convince the ISPs to bear the costs.

If warnings turn out not to work, the next step is not to sue individuals. The music industry found out six years ago that this was not only largely ineffective, but also a terrible PR strategy.

Instead, we will probably see more "speculative invoicing". This is a way to "monetise infringements" by sending legal threats directly to users.

Say a consumer is alleged to have downloaded a few movies that she otherwise would have paid for. The actual loss to the studios would probably be between $US30 and $US100. But the letters that users get sent ask for $US5,000 to settle the claims. Because it would cost much more than that to go to court, consumers will often choose to settle, even if the notice wasn't accurate to begin with.

No safeguards have been announced to regulate how copyright owners can get access to or use the personal details of Australian internet users under this scheme.

Will blocking work?

Other countries have tried getting ISPs to block websites such as The Pirate Bay before. There is very little evidence that this is effective at either reducing infringement or increasing profits of copyright owners.

Earlier this year, the Dutch Court of Appeal overruled previous orders to block The Pirate Bay, finding that website blocking was ineffective and disproportionate.

The UK is still pressing ahead and currently blocks a large list of websites. Even professional "anti-piracy agents" point out that not only is website blocking not actually useful for blocking access to sites such as The Pirate Bay, but it's actually creating a wasteful game of whack-a-mole that makes everyone's job more difficult.

What obligations does the copyright industry have?

The government has been careful to explain that it expects the industry to do better in providing access for Australian consumers. We currently pay much more for access to digital content, and are still faced with significant delays in getting access to both physical goods and digital downloads compared to consumers elsewhere.

This is important. The only way to fix the problem with copyright is to make it fair.

But the truth is, the industry has little incentive to do better. Often, its choices to exclusively restrict access to premium channels – such as Foxtel – are more profitable than making the same content available faster to more people at a lower price.

We are still waiting for the government to announce how exactly it plans to convince foreign copyright owners to treat Australian consumers more fairly. It has been nearly 18 months since the IT Pricing report recommended serious action. We're not holding our breath.The Conversation

Nicolas Suzor is Senior Lecturer, Faculty of Law at Queensland University of Technology. Eleanor Angel is Student fellow, Intellectual Property & Innovation Law Research Program at Queensland University of Technology.

This article was originally published on The Conversation. Read the original article.


Comments

    Australians are a different breed to other people in the world. We have the colloquial "bush telegraph" here and that will more quickly than not point people to lifehacker articles like this:
    http://www.lifehacker.com.au/2014/03/five-best-vpn-service-providers-3/

    Though I do look forward to the inevitable 6pm news bulletin of the family struck by a bill for thousands for something that the son's mate's ex-girlfriend downloaded.

    What if they decide to block VPN's can the government do that, to also stop access to website?

      the legitimate business uses for VPN's are huge, so no I don't see that happening. If they did? someone would just find another way around it.

        Seedbox. It is just a website so unless you compile a list of the most popular seedboxes, it is impossible to block heuristically. Torrenting, VPNs and Seedboxes can also be used for legal downloads so they will feel the wrath of business and Linux users and even just music artists that actually want to share their work if they try to block actual protocols or services.

      The chinese government have been trying to do that for years, and failed.

      Ditto Syria, Iran, etc.

      It's virtually impossible to block VPNs without blocking the Internet.

      (some of the older technologies, like PPTP, L2TP, etc are easy to block, but the open source OpenVPN and Microsoft's SSTP protocols are impossible to block)

      Last edited 12/12/14 8:53 am

      Good luck with that. too many businesses use VPN's for legitimate uses whether it be a site-to-site VPN to link up offices or a VPN service to encrypt your internet traffic ,etc. ISP's just can't distinguish between legal and illegal uses. Not only that I'm not actually sure how you would go about block an openVPN connection? anyone?

    What if the ISP simply does not monitor or log (web/torrent) traffic, or has no infrastructure to do so (which is not exactly cheap, mind you)?

    The government needs to stop trying to tell ISPs what to do and focus on fixing the real problem.

      I can see them legislating minimum log periods and standards for what to log. Until legislation whichever ISP has the least logging may see an uptick in sales.
      The other thing which might help is somehow going back to sharing IP addresses for multiple dwellings while still using ADSL? I think it is only a matter of time until ISPs team up with an overseas provider to provide a built in VPN for each customer.
      The other problem is public wifi/universities/cafes/libraries, they won't have any idea who infringed. What if I just run public wifi on my router and then claim ignorance of the offence?

    How are letters threatening lawsuits unless you pay a settlement not blackmail?

      That's exactly what they are, and now the government is legalising that.

      Right now, if you received one of these things you could just ignore it and nothing will happen. Once this legislation comes in, that situation will change.

      A VPN costs $25-75 per year and puts a stop to all of that, because it's 1) it's not your IP address anymore; and 2) that IP is shared by thousands of others at any given time.

      Last edited 12/12/14 8:56 am

        I don't see how this will impact private tracker sites. For the public sites like TPB, a VPN and an EU seedbox keeps you in business.

        Just another pathetic government bowing down to foreign interests instead of engaging in real reform. Fix the copyright and archaic restrictions allowed in contracts that inhibit competition and you fix the problem.

        The real question is whether it's too little too late?

    what amazes me is that the copyright owners still don't get it. They are desperately holding on to a model that is long dead. Their pricing systems are crazy. I can go to a dvd vending machine outside Coles and get a movie for $3 yet that same movie costs $6 on iTunes? Same copyright owner. Same movie. How is that justifiable. I download movies all the time. I used to download music but now I pay through a spotify premium subscription. Most people would be happy to pay a small fee $15-20pm for a spotify movie model. Until then downloads will continue.

      Same. I have stopped downloading music, in favour of google music all access.

Join the discussion!

Trending Stories Right Now