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


Comments

    what they should do is when you go to the cinemas they give you a download code for the movie so you dont pay for it twice when you go to the cinemas then get it on DVD/BD

    Hi All

    A quick question on the subject as using a VPN service has been suggested. How VPN service will help to hide the activities as if you are under investigation they can contact your VPN service provider to get what they need ?

    Any thoughts ?

    Cheers

    This is pathetic. Like I understand it's illegal, but the amount of shows that us Australians are missing out on that aren't even in Australia is ridiculous. Here they mostly play Repeats of old shows and barely have new ones on. I watch all the shows that don't play in Australia at all online... because they're amazing.. and the ones that do play in Australia I watch on TV.

    They're going to have A LOT of angry people on their hands if they go through with this.
    i for one will be devastated. Considering I'm addicted too all the shows that don't play here in Australia.

    she is so HOT

    Can I ask what effect this will have on mobile wireless towers for the NBN and say the already pirated content like putlocker or showbox. These have already been pirated and put up for all and sundry to watch and until I got the NBN Wireless network I was able to enjoy, but no longer. So is it blocked.

    The point is, we all pay for downloads through our service providers. Technically we have already paid for any download we get from the internet. Which has been my point from the beginning of all this extortion rot. Service providers could all spend the same costs on counters and providing the copyright artists with a fee, which would be more then enough for the greedy pigs. Possibly .05 cents per download and nothing for interrupted downloads or broken downloads or any other download that is not fully downloaded instead of all this new software to target users. As one poster said all this is about is the illegal system and their extortion. It is time for war to rid these criminals whom think they own everything including us. They have simple fixes to please all but want the hardest approach to steal our lives. How about the ones who own the CD's already but can't find the alternate versions or too lazy to rip a CD, or how about we get refunds for all the shit songs on a CD. What about those poor movies that were a waste of money. Who really is stealing from who?

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