Australian 'Three Strikes' Anti-Piracy Code: What You Need To Know

The final version of the proposed "three strikes" anti-piracy code for Australian internet service providers (ISPs) has just been published. Assuming this is approved by the regulator, there will soon be new rules that allow movie and TV studios to seek details of alleged downloaders after they have been sent three warnings.

Pirate picture from Shutterstock

Industry body the Communications Alliance has submitted the final version of its proposal to the Australian Communications and Media Authority (ACMA), which will decide whether to approve and register it. An industry code has to be in place by September 1 or else legislation (which it's widely presumed will be nastier) will be introduced. If agreement on implementation can be reached, it could happen earlier.

The basic details are the same as in the draft code released last month: studios can contact ISPs with IP addresses alleged to have infringed, and the ISP must send a warning to the customer associated with that address. After three such warnings, the studio can demand details of the customer. Our detailed discussion of the draft has more information on how the process will work.

One of the biggest omissions in the draft code — how the process will be funded — still hasn't been finalised. This has been a major sticking point: ISPs don't want to be forced to pay for studio enforcement activities, but the studios aren't keen to cough up either.

The new version does clarify some other issues from the draft version. It will apply to all ISPs with more than 1000 customers, a total estimated at around 70 and covering every ISP you're likely to have heard of. The entire scheme is not allowed to generate more than 200,000 requests in a calendar year — which isn't very many in a country of 25 million people. There will also be a limit on the number of requests that must be handled each year for individual ISPs, but this hasn't been specified yet.

The most notable improvement is the removal of the $25 fee for consumers to challenge an infringement notice. Given the difficulties involved in identifying specific individuals purely through an IP address, we'd expect this option will now be used a lot.

Don't get too excited, though: there's a get-out clause around the fee which appears designed to thwart organised campaigns against those notices:

No fee will be payable upon lodgement of the Challenge Notice unless the CIP determines that there is an excessive number of Challenge Notices that appear intended to undermine the integrity and proper functioning of this Scheme. If the CIP, after consultation with the ACMA, determines to introduce a fee, the CIP will give reasonable prior notice of the introduction of the fee and ensure that the fee is small. Any such fee if and if so when introduced would be payable by the Account Holder upon lodgement.

The Copyright Information Panel which will manage the scheme will also now have two consumer representatives; in the draft, it only had one.

The code development is happening in parallel with the Dallas Buyer's Club case, where the producers of that movie have won the right to have details of alleged infringers disclosed by ISPs. The two approaches aren't mutually exclusive: while the new code would provide a formal mechanism for demanding those details, studios would still have to sue individuals in order to seek legal redress. Either way, lawsuits against downloaders seem likely to be more common in Australia.


Comments

    "One of the biggest omissions in the draft code — how the process will be funded — still hasn’t been finalised. This has been a major sticking point: ISPs don’t want to be forced to pay for studio enforcement activities, but the studios aren’t keen to cough up either."

    either way we will be the ones paying for it, if ISPs have to pay they'll up the monthly charge and its the movie industry has to pay they'll use it to up the price of everything they can, good thing its such a bullet proof and useful strategy the people will be happy to pay for right

      @fury-sl2, the movie industry won't have to put up prices to pay for it - they've been arguing all along that they are losing revenue because of all the terrible piracy going on. So I'm [sarcasm]sure[/sarcasm] they will simply utilise some of the money they now are able to recoup to fund their own policing activities.

      Last edited 08/04/15 2:42 pm

        Yes, "losing money" in an industry that posted a mere $1.2billion profit in Australia alone. Those poor poor movie studios. /sarcasm

          Yeah, Tom Cruise could only afford the Learjet 5, not the Learjet 6 with double leather reclining seats for the pilots. It is a hard life to be sure

        My understanding is that many, if not most, movies are made with novel accounting practices in order to basically force the movie making a paper loss. There are some spectacular cases of incredibly successful movies making big losses on paper: Return of the Jedi, Forrest Gump, the Lord of the Rings trilogy, and a bunch of others - google "Hollywood Accounting" for more info.

        If a movie company is telling you they're making a loss, keep a close eye on their hands; they're probably busy picking your pocket.

        This is often done in a similar fashion to how the big multinationals are shifting profits - the actual production company pays a spurious shell company owned by the studio for services rendered at a rate not remotely resembling their actual value.

    Seems a little absurd to me that the studios aren't prepared to pay to 'protect' their own product. If they can't find value in it then why should anyone else.

    If we compare that to say a defamation lawsuit it would be like expecting all the people whom had read a defaming statement about someone to pay for the legal costs of defending that persons good name.

    First order of business when this code becomes live, log into any and all public access wifi points owned and operated by the Australian Government agencies/organisations... see if you can get them 3 strikes in month flat.

    An organisation of 500 staff.... how long do you think it will take them to 3 strike a companies internet connection to be blacklisted. I used to recover hard drives of ex-employees the amount of copyrighted "research" for business purposes they had made the librarians cry, let alone the whole truck tonne of "entertainment" they duped onto their laptops. How many businesses can be sure that all their staff's business mobile phones DONT have pirated copyrighted music of them.

    Seriously though, this is going to blow up in the governments face if they keep restricting the use of copyright material in electronic formats without relaxing a few of the terms and definitions to the law. The movie industry are not the ones waiting to jump on this... its software / technical writing / authors / content providers / web designers. A single PDF of a copyright document emailed to a few dozen people / or sitting on an intranet (or server) for staff to share... is a 100k law suit waiting to happen, and the biggest offender would be the Australian Government organisations being such a large employer.

    Last edited 08/04/15 7:43 pm

    two questions. does this apply to games? it seems like a stupid question but news report only say tv,movies and music. curious. also, if anyone knows would this include previous downloads. because if it did i think 90% of the australian community would be getting fines and warnings. the whole thing just seems stupid and full of holes to me

    wheres the outrage? Why are we paying for this? Which parties and politicians voted it in?
    Everyone's talking about this like its a fait-acomplis. Name and shame the politicians that are making you pay more for your internet.

    "The basic details are the same as in the draft code released last month: studios can contact ISPs with IP addresses alleged to have infringed, and the ISP must send a warning to the customer associated with that address. After three such warnings, the studio can demand details of the customer. Our detailed discussion of the draft has more information on how the process will work."

    How does the studio know when it's hit three strikes with the one infringer? Presumably most people have dynamic IP addresses, so they won't have a clue unless they ask the ISP if it's strike three.

    This is exactly the same made move made by the NSA in the United States, this new law has caused an uproar in the Australian Public and has led them to seeking refuge by searching for VPNs.

    This plan is to keep Australian’s from illegally downloading software and movies. But the government has not realized that this move will also risk the privacy of the Australian Citizens.

    Australians are now looking for a way out of this and an Australian VPN is the only solution. A VPN will cloak your outgoing traffic and hide your IP which will keep your identity safe.

    According to Google trends the Search for VPN in the Australian region has sky rocketed in the past few days. This shows that the people of Australia are smart enough to know whats best for their privacy.

    Source: http://www.bestvpnprovider.com/australia-vpn/

    I spoke to a friend who works for the AFP in internet security about this. He is not worried so I am not either. Essentially, we have other laws in place that protect us from attempted extortion. If A movie studio sends a letter to you demanding you pay an out of court settlement of 10K or risk a $1 Million fine, putting it frankly that is extortion and blackmail. He gave me a tip of advice, if you wish to download a new movie, do not do it right away, wait for a week or 2 after it has become available for download.

    It is interesting how the meta-data collection laws go a long way toward helping implement this new three strikes scheme.

    Actual-factual-real-terrorists will not be caught by monitoring the communications and browsing habits of every Australian citizen. Anyone who exerts even a little bit of effort can bypass the meta-data collection scheme.

    Making VPNs illegal is really terrible. Our government has no right to treat us all like potential terrorists and criminals! I'll bet that things like VPNs and TOR will be illegal for ordinary people but OK for corporate and government use.

    Australian law should reflect what sort of a place the general population thinks Australia should be like to live in and not the greedy desires of large corporations and corrupt politicians.

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