How Australian ISPs Will Start Busting Users For Piracy

Australia is now a lot closer to having a US-style system where your internet service provider (ISP) would be required to send notices if you're suspected of torrenting movies, TV shows and other copyright material. A new draft code developed by ISPs outlines how that "three strikes" process will work.

Pirate picture from Shutterstock

To be clear, ISPs have no choice about this -- current Australian federal government policy requires them to develop and implement a code to do this before September 1 2015. If that doesn't occur, government legislation would be introduced, and it's a fair bet that this would be skewed entirely in favour of US studios and impose more costs on providers. The draft version of the code is being made public for comment now so it can be submitted in final form to the Australian Media and Communications Authority (ACMA) by April.

Here's the one paragraph summary of the proposal:

The Copyright Notice Scheme Industry Code creates a Copyright Notice Scheme through which residential fixed internet users who are alleged to have infringed copyright online will receive an escalating series of infringement notices designed to change their behaviour and steer them toward lawful sources of content. The Scheme has a strong emphasis on public education and does not contain explicit sanctions against internet users, but does provide for a 'facilitated preliminary discovery' process through which ISPs can assist Rights Holders who may decide to take legal action against persistent infringers.

It could be much worse. Some rights holders have pushed a scheme that goes further, with persistent infringers having their accounts terminated, but the industry has resisted that. Under this proposal, studios would still have to sue individuals accused of piracy, a strategy which has sometimes spectacularly backfired in the US. Let's look at what the draft code suggests.

How It Works

The code would be administered by the ominous-sounding Copyright Information Panel. This would have five members, each serving for two years. Two would come from the ISP community, two from the rights holder community and one from consumer group ACCAN.

Under the code, a standardised format for email copyright notices will be developed. If a rights holder (usually the owner of the copyright in a movie/TV show/song) believes they have detected illegal downloading of their work and can identify the relevant user's IP address as coming from a particular provider, they can send that standardised copyright notice to the ISP. This must occur within seven days of the alleged infringement, and include the date, time and time zone.

The ISP then has to contact the account holder with an email (also in standardised form) telling them of the alleged infringement. That notice will include links to legal sources of content (hopefully in a more useful format than the current and awful Digital Content Guide). Details of the account holder are not shared with the rights holder at that point, however.

The notices work on a three-strikes model, with each letter becoming progressively nastier. (The three stages are branded Education, Warning and Final.) After you have been sent a notice, there's a 14-day period in which any additional detected infringing activity should not result in a second notice. That still means you could receive three notices in just over a month, however.

If three notices are sent in a 12-month period, then ISPs are supposed to "facilitate an expedited discovery process to assist the Rights holder to enforce its copyright". What does that mean? Your address is eventually handed over, and the studio might choose to sue you or (more likely) demand a payment for the infringement. Note that it's the individual, not the ISP, held responsible -- by signing up for the Code and following its provisions, ISPs are indemnified from legal action against them by copyright holders over alleged infringements.

Consumers can lodge a "challenge notice" and dispute any claims of infringement, but only after a Final notice has been sent (and no more than 28 days after it is received). You can dispute any of the three notices when you lodge a challenge). You have to pay $25 to lodge a challenge, but the sum will be refunded if you're successful. The process happens entirely in writing, with your submission and responses from the rights holder and ISP considered by an adjudication panel.

There would be a review of the code's effectiveness after 18 months, and then every 5 years after that. 5 years seems rather ambitious given how quickly technology changes, though there is provision for additional reviews if "significant developments" affect how the code works.

Lots To Argue Over

A lot of crucial elements are still missing from the draft. In particular, there's no specification of how the scheme would be funded, which is one of the major points of contention. ISPs argue that they shouldn't be forced to fund copyright enforcement, but the studios aren't queueing to open their wallets to contribute either.

There's also an argument over the minimum size an ISP would have to reach before being required to sign up for the code, though clearly the major players (Telstra, Optus, iiNet, TPG) would have to be involved. Another point of dispute is the maximum number of notices that any ISP will be obliged to process in any calendar month -- providers understandably want a limit set so they're not swamped with automated notices.

Nowhere in the code is there any discussion of the obvious issue: how will this help if people mask or spoof their IP addresses to avoid detection? Presumably that's just in the too-hard basket.

Comments are being invited on the draft until 23 March 2015. While these will inform the final draft, we suspect it's the behind-the-scenes negotiations over the contested aspects that will prove more interesting.

Communications Alliance


    I'll be honest, it should be funded by the copyright holders. They would be better with better off making content services cheaper.

      In Australia users face many difficulties because their ISP's are keeping an eye on them specially they are not allow to do torrent, P2P file sharing that is why the VPN users are increasing.

    I might finally have time to watch my huge backlog of unopened DVDs & BDs, curse those JB sales!

    "residential fixed internet users"... what about business users or those hammering a 4G connection for some Frank Underwood action? Interesting times ahead.

    "toward lawful sources of content"

    So.. cinemas (at $21 a pop, plus delays for movies like the Lego movie?). Or perhaps free-to-air where there's lots of ads and the content is cut down to fit in more ads? Perhaps they mean Foxtel (I think they mean Foxtel) with it's subscriptions and exclusivity and its generally not-cheap-for-watching-one-tv-show ways? Maybe it's iTunes with it's sorry-this-video-not-available-in-australia-ness and general Apple-ness?

    Or perhaps good ol' fashioned loaning of DVDs between friends, where only one person buys a copy and everyone can watch it meaning lost revenue anyway?

    It's still a "cost and availability" thing. Always has been, always will be. Availability doesn't just mean having it available for streaming / purchase by the way, it also means being able to watch it. What good is Google Movies if my internet is so slow it's unwatchable?

      A much more elegant elaboration on my point. Right on point!

      I can't wait until I have all the convenience of the clusterfuck of lawful sources of content. Netflix Australia subscription that's missing stuff because they sold exclusive rights to foxtel. Foxtel subscription that only comes in expensive bundles of stuff I don't want. iTunes stuff that you buy and comes with ads anyway (yay Archer!). Maybe I should invest in soon to be obsolete blu rays or already obsolete DVDs that come out years after shows and movies air.

      It's just baffling that people are resisting the many quality options available.

        If you want full access to netflix . Subscribe to the American netflix. If you have region issues get a vpn service.

      Regional delay is a big reason why I sometimes torrent. The biggest one I can remember was Let's Be Cops from last year. There were Blu Ray rips available before it even released in cinemas here.

      Not a blockbuster title, but it's just the fact that the delay was so long that the US had retail copies available before we could even watch the first minute legally is bullshit.

      Last edited 23/02/15 1:08 am

        Sometimes movies are delayed so they can fit in for holidays. Lego movie was a prime example. It was released during the US summer break, which is like 3 months of nothing. Australia decided to show it during Australian summer school holidays, which is a whole month of nothing.

        But with that said, I would not care if they showed it twice. First time when it was first released, then again during an optimal holiday season. Of course they should release the DVD / Blu-Ray after the first screening to cut piracy. If kids already own the DVD when it rolls around in cinemas again, make it worthwhile, by having other activities before and after the movie so actually exciting to see it again after seeing it on DVD 100 times.

    Whilst this is a great step in the right direction, I still feel copyright holders are ignoring the fundamental problem: Australian piracy is driven by over-priced and delayed releases. We might get a blu-ray release months after the US at roughly double or triple the price, and yet it comes as a surprise when many people chose a more affordable option. Provide us with reliable, accessible and affordable options and the problem will solve itself.

    On another note, how do i leave a comment on the draft document at the provided link?

      You can comment on the draft at (link chopped so that it has some chance of getting past a spam filter)

      So you're saying if everything was cheaper and on time then people would stop pirating? People pirate because its free to do so and there are currently no repercussions.

      Someone will always have an excuse to pirate something. Oh its too expensive, our internet sucks, someone got it before I did, I only wanted to try it out before I bought it etc. etc.

      That argument holds as much water as a sieve.

        Actually I do pirate most music as a preview. And I go and buy all CD's that I like legitimately afterwards. There is so much music released and a lot of it is crap so why give your money to artists who aren't creating great music? I have purchased over 1,000 CD's. I would never have purchased half that many if I hadn't had the pirated preview version first. And I don't have the storage space to keep bad music so if it's crap it gets deleted anyway. So my Sieve is pretty water tight

        That is total crap.. the majority of pirating is done by people who still go to the movies,who still buy dvd's and blu rays..the reason it's so bad is because we are drip fed.. the shit they give us on TV is as old as the hills or nothing but reality TV. People are fed up with the control mechinism we are under..TV proves it time and time again it can fast stream from the US so just give it all to us and 90% of pirating would end.

    It would be extremely difficult to pin an illegal download on one particular person. Just because a there appears to be a download, does not mean the download was successful. And who in the house downloaded it. I see this as more a form of scare tactic than sanction.

      Don't think it will matter, whomevers name is on the service is responsible for its use. Known or otherwise. :(

        I think this may lead to people who are on unlimited profiles simply opening up the wifi with no password, you have to be proven of guilt and on a open wifi. they will have no leg to stand on.

          If you do open up your wifi like this, it would also be worth investigating how you can register yourself as an ISP so you get the proper protection for people using your connection.

      Similar yet slightly different question. How would it be identified. If i start or finished a torrent on a public wifi (cafe etc) would it be attributed to them, or would it have to be a complete DL on either my home or public access point...

        That's right. There are too many grey areas to plug. A conviction would pretty much require an admission of guilt.

      So if you open your house up to someone to use as a drug lab but don't take part in running the drub lab or make any money out of it do you think the law will look the other way? I can't see this being any different.

        methinks being associated with illicit drug production is far more wrong than having someone in your home downloading a movie for free. And why don't they go after the big fish eg the piracy websites?! Makes me wonder who the REAL pirates are who use the "law" for their own twisted advantage to hunt down the little fish and extort them for all they're worth!!!

        This is obviously a late reply, but to counter your point the analogy is not accurate.

        A more accurate analogy would be: you open your door to your friendly neighbours for convenience, and then someone unscrupulous takes advantage of your good nature and secretly sets up a drug lab in the basement or attic, or where-ever. In this case, you are a victim.

        Say someone gains access to my passworded WiFi (somehow), and downloads something.. am I responsible? I put in a password and took 'appropriate measures'.

        Someone comes and steals your car and causes an accident... are you responsible for that accident?

      It doesn't matter if is successful or not. Attempted murder is a crime. Even if you download a small percentage of it, you have still infringed on the copyright.
      The person identified is the account holder. Infringement is happening on a service they pay for. They are the one who are targeted.

      HI Guys, TPG sent me an email yesterday with time stamp of alleged copyrights infringement . I called those idiots and I am being told my activities online will now be monitored and if further illegal download will result in service termination and legal action with fine up to A$20,000 ?!?I tried to tell them nobody in the house was on the laptop/desktop at the time as we were too busy watching tv reality show! I told them two months ago I started having issues with possible hacking of the wireless network...well they told me that s my problem, they suggested changing the password on the modem! anyway I replied that to solve the issue I changed tha password and I am asking my in-laws living with us to get a second phone line and their own internet connection as I don't want to be accountable for their online illegal activities.....but one thing is sure is that I have now installed easy-hide-ip to start when my laptop start and the same on all the house PCs/laptops and I will also now use TOR more often....let see if they can monitor me then!

    My question is how will they know? I worked for iiNet for a bit and there was no software on the system that could tell what a user had downloaded. All it had was the usual "You've downloaded x amount in a day" limit check system.

    If the copyright mafia wants it determined by how much is downloaded in a day, then how does the system tell the difference between bit torrent protocols and someone watching Youtube? It can't. And even if they can point at an exchange and say "There's someone downloading via torrents" then how does the system know the difference between The Pirate Bay and a torrent based downloader like Blizzard Games? It can't.

    So unless there is approval for spyware to be introduced that retains all the data transfers on everyone's computers (which would be illegal as it breaks many privacy laws) then there is no way for this Three Strikes plan to work.

    Last edited 20/02/15 2:57 pm

      Under the code, a standardised format for email copyright notices will be developed. If a rights holder (usually the owner of the copyright in a movie/TV show/song) believes they have detected illegal downloading of their work and can identify the relevant user’s IP address as coming from a particular provider, they can send that standardised copyright notice to the ISP. This must occur within seven days of the alleged infringement, and include the date, time and time zone.

      I suppose that means if they, say, note your IP in a torrent swarm they can contact the ISP that IP belongs to and tell them to contact you and warn you.

      As others have pointed out, you could argue your wifi is unsecured. As far as I know there is no law that says you have to secure your wifi. Or could use a VPN which would seem to render this whole process useless.

      Last edited 20/02/15 3:58 pm

        Correct. the rights holders pay a third party company which downloads infringing torrent files, checks into the trackers and just grabs every peer IP it can. They filter it down by ISP and send notices saying 'hey this ip address is breaking the law, trust us.'

        The 'trust us' is the part that's going to be the most interesting. The ISP will be unable to verify the claims, they'll just forward on the notice. The rights holder has no real penalty for sending false notices, as there's little extra work for them up until they have your identity and have to decide whether to take you to court. I'm also hard-put to think of many legitimate dispute claims: 'I seriously have no idea' isn't going to cut it even it's true.

        I'm looking forward to the first few court cases. They'll probably have to detail the exact methods used in court, and prove that you were definitely infringing on their work (And not, say, downloading a mis-named ubuntu ISO), and technical experts will throw around all kinds of theories about ip spoofing and WEP/WPA cracking and botnets.

          Maybe they'll just do what they do overseas and send threatening letters to alleged pirates shaking them down for a quick buck. Usually the amount is 100s of times more than any cost associated with the content, the means used to discover the piracy, and a reasonable form of compensation for the infringement.

          "Pay us X amount otherwise we'll see you in court". Many people comply because they are scared and ignorant of the law.

      Deep packet inspection bruh

      The NOC (Network Operations Center) has the capability to determine your IP & what Servers you're connecting to (This also included peer to peer traffic. DPI). The type of Traffic it is they cannot distinguish, especially if its SSL encrypted.

      Last edited 20/02/15 6:13 pm

    If all tv shows and movies were as easy to buy as they are to download (you know.. as soon as they are released) I would buy them.

    If I didn't have to sign up to different companies for access to different shows.. (foxtel - game of thrones) (stan - better call saul). I would buy them.

    & If the price was fair, I'd buy them.

    But let's be real. This will never happen, so I will continue downloading using a VPN.

      Let's just start with getting internet which can stream content. Fair pricing seems a little ambitious!

    join a unlimited internet plan and run a unlocked wifi.... then how can they blame you when anyone can be using it.

    So easily circumvented via a VPN - which a 10 year old could work out how to use. So next they'll try and bring in restrictions on vpns for basic internet connections or something equally ridiculous. By then someone else will design another tech to share shows. It will be a endless cat and mouse game.

    Fuck these guys are idiots - if they just invested 1/10th of the effort that they put into better deployment or network system like netflix instead of "stamping out piracy" they would have made much more money, good will and reduced piracy at the same time.

      Exactly. I would pay a couple a bucks a month to use TPB legally. No problem. The fact is the pay services are friggin useless. They only have crappy moronic dead slow new releases and you can't save them. Woopy friggin doo. They can shove it up their arse.
      If these braid dead greedy capitalist pigs could think a little and understand what we actually want (which is not their endless brain washing drivel) then maybe we could have a meeting of the minds.

    Some bands release some music free on torrents ( ministry) what then?

      Why would band who released a free music torrent then go and contract a company to record IP addresses and send threatening letters to their fans?

        Ministry release free tunes,clips on torrent sites.its not that they'd sue,but could I be sued for simply using pirate bay or whatever?

          You cannot be sued for using a website. You can be charged if you are accessing secure parts of a website you are not meant to like military secrets or soemthing. Or child porn.

          There is nothing wrong with using the pirate bay as website. If you start sharing or downloading copyrighted material *without* the consent of the rights holder, you may get in trouble.

    Read the "The Inexact Science Behind D.M.C.A. Takedown Notices" at the NY Times. Rights holders can only speculate you are downloading something based on your IP address, there has been dozens of examples of laserjet printers being issued with notices

    Anyone used the 'Ultra Violet' redemption that comes with DVD's? I had a quick look at the T&C's and figured it wasn't worth bothering about.

      I have never redeemed one. Fuck that. Also puts their shit on the cover of my movies. Double fuck that.

      However I did get Guardians of the Galaxy for my birthday and that let me redeem on Google Play! Score.

    This is a perfect example of how lobby groups influence and distort government, the is only happening under threat of government control.
    Entertainment is a pocket change industry.
    It takes a cut of what people have left after tax and necessary living expenses , and then contributes via its own tax, presumably.

    Certainly a very small proportion if its revenue goes towards the actual creative agents but most goes towards creative accounting.

    If I pay $50k in tax, pay $2k to ISP ,mine plus support aged parents net account, why does a tertiary industry get such support to demand access to our use statistics? A bit of extra cash in a few peoples pockets.

    My dad has a letter demanding he pay up and a court date. No way. I manage his computer via remote access, I know what is on there.
    He uses 5G a month out of 100G, most of that is Skype at 500M an hour, he doesn't even have torrents. No wifi for someone to tap in.
    Presumably THIS one is a scam , I don't think they are doing that yet?

    It does show there is a lot of avenue for mistakes when a modem boot gives a new IP.
    What he does do is turn everything off, a couple of times a day, even though I gave him an UPS because they have bad power. Every time he boots the modem he gets a new IP.
    What is the ISP resolution on line/IP number?
    Any bastards who give an 89 year old a heart attack just for an ambit claim deserve to be burned.

    And some more from the net
    Listed below are just a few of the concessions that apply only to the entertainment industry:

    Refundable tax offsets including the Producer Offset, Location Offset and PDV Offset
    Income averaging for special professionals
    State-based incentives
    Payroll tax concessions
    Film funding grants
    Performing artists PAYG withholding rates
    Temporary residents’ entitlement to claim superannuation
    GST and reverse charge agreements
    Specific industry deductions available for performing artists
    Specific double tax treaty clauses with other countries

      Some of those actually pertain to those that produce the content. It's the distributors that are causing all the fuss.

    Just make sure you, and everyone you know, stay of the P2P sharing networks that advertise your IP address!

      Soooo....all of them? They need your IP address to send you content.

        Things like standard bittorrent includes your IP address in a big list viewable by anyone who is linked into the same torrent swarm as you which is what I meant by "advertise".

        If you want to download through P2P networks then you'll need to find an option that hides your IP address from general observers.

    But IP changes when modem reboots. whats to stop getting pinged for what the previous person did? A similar sort of thing, I got a new phone line in a new built house 3 years ago. I still get calls for the old account owner at a different address . In the first months I got some very twitchy calls from OZ immigration **demanding** I tell them where the old owner is, completely unknown to me, and threats of legal action and a visit from the authorities. Just threats, 'get a dog up ya' in broad central Australia accent and no more heard.

      I'm pretty sure it's not hard to keep track of this.

    We elected you bastards in Canberra to run this country.

    We didn't elect you so that you could delegate the job of running Australia to US movie studios.

    You should be embarrassed and ashamed that you have abrogated your responsibility and outsourced your fucking jobs to greedy US movie studio bosses.

    Get off your butts and start working for Australians instead of grovelling pathetically to the corrupt USA based ultra wealthy.

    Last edited 21/02/15 9:03 pm

      The Abbott government has been nothing but bad for Australia, even have committed criminal acts against asylum seekers. Copyright in general should be done away with, things created should be made for the benefit of society as a whole not for benefit of greedy people, copy right prevents others using things because someone used it first it is a pathetic law that has no place in a advanced intelligent society, only in a moronic society based on greed destined to fall upon it own corruption one day.

    The MPAA should pay for the cost. They earn billions of dollars a year, so let's see that money being used instead of taking money from everyone bellow once again.

    i would have no issue not downloading anything if it was not for the fact the shows i want to watch are not even available here in australia let alone on dvd or bluray. for eg...face off and awesome show foxtel played the first season and that it nada since then. and its up to like season 7 in the usa. then there is shows like supernatural that tv here in oz seems to vito and not play some episodes and you only realise stuff has been cut when you wat over 12 months for it to come out on dvd only to be charges $70 when i could/should have got it on amazon for $25 6 months prior. i thought we were in the age of technology. everything should get released at the same time showed on the same time and released on dvd the same time......... they could do it for the doctor who 50th anniversary why the F**K can they not do it for everything else :/

    screw these guys. I'll use a VPN I stopped watching pretty much all Hollywood movies ages ago. If by chance a movie like comes out i like i'll buy it, though i tcan be hard getting foreign movies in oz. i'm not going to pay to finance more mediocrity from hollywood. They can shove the next transformers movie or whatever franchise they choose to whip to death right up their clacker

      Exactly. I think the one thing that scares them the most about torrents is people aren't watching their moronic brain washing dumb downing crap anymore. That scares them. I don't watch TV anymore. I download what I want and that's it. Since then I've realised that the wingnut is a total dickhead and needs to be voted out asap. You see!! I'm waking up.
      PS. Gogglebox WTF is that?? Are you kidding me!!!

    I'm in Canada right now and they have this. Below is the kind of notice they send. Naturally I'm looking into VPN services as we speak.

    Dear Subscriber
    Content owners that hold property rights for material such as movies, music and other content, actively monitor Internet activity to protect their rights. We have been notified by a content owner that your Internet Protocol (IP) address has been associated with suspected copyright infringement. As part of new Canadian copyright legislation*, we are obliged to forward to you the attached copy of the content owner's notice. We are unaware of the full details and merit of this infringement claim. If you have questions concerning this matter, please contact the content owner directly - contact information is listed in the attached notice.
    Infringement of copyright laws may result in the content owner pursuing remedies available under applicable laws to protect its interests. We encourage enabling secured passwords on your home Wi-Fi network if you have one to avoid unauthorized use of your Internet connection.
    Thank you for your attention to this matter.
    Please see the link below for more information:
    Shaw Cablesystems G.P.

    And the forwarded notice:

    VIA EMAIL:Notice of Claimed Infringement via Email
    Dear Sir/Madam,
    We are writing this message on behalf of HOME BOX OFFICE, INC. ("HBO").
    We have received information leading us to believe that an individual has utilized the IP address XXX.XXX.XXX.XXX at the noted date and time below to host and/or facilitate the downloading and/or streaming of content (listed below) in which HBO is the copyright owner and/or the owner of exclusive rights in such content (the "HBO Properties"). No one is authorized to exhibit, reproduce, transmit, or otherwise distribute HBO Properties without the express written permission of HBO, and the unauthorized distribution of HBO Properties constitutes copyright infringement. This conduct may also violate the laws of other countries, international law, and/or treaty obligations.
    The title in question is: XXXXXXXX
    As the owner of the IP address, HBO requests that Shaw Communications immediately do the following:
    1. Contact the subscriber who has engaged in the conduct described above and take steps to prevent the subscriber from further downloading or uploading HBO content without authorization; and
    2. Take appropriate action against the account holder under your Abuse Policy/Terms of Service Agreement.
    We have a good faith belief that use of the copyrighted materials described above is not authorized by the copyright owner, its agent, or the law.
    We state, under penalty of perjury, that we are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
    This letter is not a complete statement of HBO's rights in connection with this matter, and nothing contained herein constitutes an express or implied wavier of any rights or remedies of HBO in connection with this matter, all of which are expressly reserved.
    We appreciate your assistance and thank you for your cooperation in this matter. Your prompt response is requested.
    Any further enquiries can be directed to [email protected] Please include this message with your enquiry to ensure a quick response.
    Adrian Leatherland
    Email: [email protected]
    Address: 6715 Hollywood Blvd, Los Angeles, 90028, United States
    - ------------- Infringement Details ----------------------------------
    Title: XXXXXXXXX
    Timestamp: XXXXXXXXX
    IP Address: XXXXXXXXX
    Type: BitTorrent
    Torrent Hash: XXXXXXXXX
    Filename: XXXXXXXXX
    Filesize: XXX MB

    Last edited 25/02/15 4:33 pm

    Big surprise that the Libs are doing exactly what their US corporate masters want. It won't work. I have tasted freedom and will never go back to DVD shops or these ridiculous pay per movie web sites. VPN here I come. If that doesn't work then I simply won't watch anymore. You can't go back to eating sh_t once you've had caviar. Will never vote Liberal again!!!

    This article should help get everyone of the right track

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