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.

Republished from Lifehacker

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

    So pirate, get notice, pirate some more, get another notice, then use vpn and keep pirating. Sounds OK to me.

      Or just use VPN to begin with and get no notices.

        Or use a seedbox in Europe to do the downloading/uploading, then just FTP completed files to home at your leisure.

          What is this seedbox? how do I FTP things to me?

        VPN's aren't always the answer. Most don't keep logs but some do. If they do, you will get a notice from them. They will not divulge your IP to the complainants, but they don't condone piracy either. You may find that after several notices' you will loose your VPN service.

        Last edited 22/02/15 2:15 pm

          Good, a VPN kicking you off the poor choice of VPN. Also, will they be suing everyone in the household or just the owner?

            That's one of the main issues, it's very hard for anybody to tell exactly who was using a computer at any one time.

            I think the warnings would be issued to the account owner of service. But then again, it does create problems when it comes to the final legal action, specially in cases other than family units (apartments...etc)

              yeah unfortunately i just "happen" to use an OPEn wifi hotspot in my apartment and change my mac address hourly

    The biggest issue is whether or not this 'expediated discovery process' occurs before or after a court order. Because if businesses are handing over the details of their customers just because some knob from Village Roadshow asked them to, it's a problem.

      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)It makes sense to me, then, that the ISPs would have to wait 28 days for a possible challenge before starting the 'expediated discovery process'

      the idea is 3 notices within 12 months before they're allowed to hand over your private details for village roadshow knobs to sue.

    Or just use NZB and SSL tunnelling to dedicated hosts and not have to worry about "oh man, shitty torrent, not enough people seeding".

    Thing that irritates me with all this is the fact the High Courts ruling in the iinet/AFACT case is being completely ignored and the onus is once again being put back on the ISP's to do the dirty work for the entertainment industry. I mean come on, really? They continue to ignore the abundance of proof that making content more readily available online in good formats, at time of release everywhere else in the world and at a reasonable price slows down the rate of piracy for content. Blind leading the blind.

      Thing that irritates me with all this is the fact the High Courts ruling in the iinet/AFACT case is being completely ignored
      It's also pre-empting the ongoing Dallas Buyers Club court case where the rights holder is going through a legal process of discovery against iiNet. No code should be implemented or agreed until the outcome of the court case is known. If the court finds in favour of iiNet why should the ISPs agree to a code.

      Yeah, then you can worry about fake files that no one has flagged yet, or mislabeled scene crap, or the 75% incompletes of anything new even if you have a tweak backup connection.

      I love usenet, but let's not pretend it's a flawless system.

      Last edited 20/02/15 4:56 pm

        It's a better system though. I've been using NZB's for about 6 years now and I rarely have issues with the fake files. I have CouchPotato and Sickbeard setup to automate things and about 98% of the time it works fine. Can usually figure out which ones are bogus when searching through manually. Like the idiots who post up 1080p videos @ 4gb~, you just know they are going to be the fakes with the "go here to retrieve password" bullshit.

        The method of downloading is the thing I like the most, completely anonymous and ISP/AFACT have no idea what you're downloading because of it. Having 1 download screw up every once in a blue moon is a small price to pay for obtaining something in a timely fashion from it's release. I still buy box sets and movies etc when they become available, just I completely do not agree with the current model in that they'll release something in 1 country and make the rest of the world wait several months for the same content. In a digitally connected global community, there is NO FUCKING EXCUSE for this anymore.

          I've been using NZB's for about 6 years now
          What is NZB?

          There's a lot of true 1080p movies that are around 3-4GB, they're not always fake.

        ? What is it you have been trying to download? I think I've had about 3 in two years; just wrong episodes. Sounds like you need to look into new nzb providers.

        Last edited 24/02/15 1:15 am

      I just won't watch whatever show. Big deal. Walking dead and stuff is complete crappy these days anyway. Enjoy your "100's of billions of dollars" you lose every year from"piracy" "hollywood"

      High Court authority is not being ignored; it's being explicitly overturned by legislative action. I'm not arguing the attendant issues of the situation either way (in fact I disagree quite vehemently with the proposal on many grounds), but you seem to be labouring under the misapprehension that ultimate law making authority resides in the High Court. In fact, under our system of law and government, that sovereign authority rests with the Crown in parliament.

      While it's true that the courts interpret legislation and, therefore have a critical responsibility for determining how legislation is to practically apply where there is a dispute in that regard; the power to make legislation is wholly the parliament's. It is open to the sovereign law making authority, therefore, where they are unhappy with a determination of the courts, to rewrite legislation in order to seek a different result as to the practical application of the laws they've made.

      The legislature makes the law, the executive executes the law and the courts interpret the law. It has ever been so with our common law Westminster system of government.

      There is one small issue with making content available online - Fraudband. I am not even on the roadmap for any kind of Fraudband and until that occurs I have no option for an internet connection fast enough to stream content from the likes of Stan, Netflix or any others. Referring to the Stan specs I could manage standard definition but not high. Who on earth is going to pay for SD? Even when I get Fraudband Turnbull is only guaranteeing "up to" 25MBps so even then I could be struggling with HD content.
      So the bottom line is that the LNP want to screw all Australians for pirating content but even if it is made available online they have screwed us at the other end with Fraudband. Catch 22 anyone?

        This will definitely work to stop piracy and won't cost millions and millions of dollars that could have been used to creat jobs and and infrastructure. Good job government and Murdoch stopping this evilness right in it's tracks ;)

    "The ISP then has to contact the account holder with an email (also in standardised form) telling them of the alleged infringement. " Which most users will ignore as they expect it to be spam. Spam will come which mimics these notices, except the payment link might be a bit different.

    Also, I wonder about public computers, internet cafe, McDonalds wifi, university, even shared households - sure they might have an IP address and timestamp, but what does that prove? Or does the original account owner have to sign a stat-dec like wrongful speeding tickets?

    One more thing - shouldn't there be some discussion too on any appropriate levels of fines issued by "rights holders" or are they going to be able to go for $250K per movie or whatever number they dream up? Or does it have to go to court each time?

      It has to go to court each time, but the way the studios get what they want is by making 'going to court' sound like an incredibly painful process. They cite previous wins as precedent for the kind of multi-million dollar damages you'll face for your viewing of a $20-30 movie (which, perversely, includes legal fees... which is all kinds of fucked up when you realize how much these fuckers spend on lawyers), and scare you into letting it all go away if you'll only pay the low low price of $5000. Which is still WAY too high.

    The Copyright Notice Scheme Industry Code creates a Copyright Notice Scheme through which residential fixed internet users who

    So does that mean everyone can pirate at work where there may be hundreds of people behind a single IP address??

      Exactly. Not only are the ISP's being turned into copyright-cops, every system admin in the country will be too. The effect is likely to be the shutting down of public wifi, restriction of work internet access and misery for everyone. This really feels like the thin end of the wedge. A few changes in words here and there and the scope will have massive implications. I really hope they think this one through.

      Also, there will be consumer backlash if they go after someone. Bad press and boycotts. The whole thing is a really bad idea.

      Let's see how long you can torrent pirate content at work and keep your job

      So you think your IT department has no idea what their users are doing do you. Most company's have policies which enable them to give you the ass for such behaviour/breaches so you go right ahead and think you can hide at work, but dont come complaining when you lose your job. Pretty hefty equivalent of a fine is my thought.

        I'm self employed and just making a point. Smaller companies that don't have that infrastructure in place wouldn't have a clue who downloads what.

          The notice will simply be sent to the company. The rights holders probably have an even better chance of getting their money.

    You have to pay $25 to lodge a challenge, but the sum will be refunded if you’re successful.
    So internet users will forego natural justice to appease rights holders. Evidence from other notification schemes overseas suggests the system used by rights holders to identify IP addresses is flawed with many innocent parties being accused. An account holder should not be responsible for any fee to lodge a challenge.

    That twenty-five dollar fee bothers me. Not because of its monetary value, but because it gives them access to the account you used to pay it with when it comes down to them suing and winning!

    Last edited 20/02/15 6:24 pm

    Meh, so I stop watching TV any more. No big loss, plenty to do with my free time.

    I'm considering Netflix et al, but considering all of them eat my internet quota and will be months/years/never behind other regions why bother.

      Same. Started running. Got fit.

      But gee i surf the net a lot.

    Ah, three strikes. So STRIIIKE ONE..... VPN!

    Your address is eventually handed over, and the studio might choose to sue you or (more likely) demand a payment for the infringement
    What? Doesnt Australian Privacy laws protect us from this kind of thing?

    But how will they know if someone is pirating something? How do they know the difference between downloading something illegally or watching something legal?

      the metadata law they are trying to also get through the government.

      I think with Torrents the media companies download the file themselves and then they can see via the p2p client/info the IP addresses of anyone connecting to it to download. So because they have the actual file they know exactly what you are downloading. They can't tell if you are downloading a million other things legally or not, but they can see if you are downloading the specific file(s) they are seeding.

        So...in other words this is a double standard.

        We can seed this illegal file all we want, but if we catch you doing it then have this fine, scum!

          Pretty much. I think they may also seed fake files, too.

            I think they may also seed fake files, too.
            That definately cant amout to an infringement notice if its just a file with the same name as a movie/tv show but not the actual thing.

          Well, they do actually own the file. So are they really breaking the law?

        if the media companies are uploading the files themselves so they can track would that be entrapment?

          No. Entrapment is something police (shouldn't) do. Even if you tried to apply the law to private actors, it would be pretty hard to convince a court that the media company uploading a file - that you went to TPB and hunted down of your own volition - caused you to commit a crime that you would otherwise have been unlike to commit.

          Entrapment is NOT a law in Australia.

            its not a law in Australia? so the police can commit an illegal act to catch someone preforming an illegal act....if this is so then i understand Australians general mistrust of people in power.
            on the convincing the courts that a media company uploaded the file, would that not be the same way they find who downloaded said file. there is always a trail somewhere online you just have to follow it long enough.

              Late response because I was away for 5 weeks. But no, it is not a law and it is not a defence.

              Things in US movies don't tend to translate well into our legal system.

              http://www.findlaw.com.au/faqs/3345/is-there-a-defence-of-entrapment-available-in-aust.aspx

    Scammers will have field day with these email warnings. Scammer sends fake Final Warning with link to site that steals credit card details.

      *starts drawing up scam email templates*

    Well when this system doesn't work the rights holders will just complain some more and demand some other ridiculous measure that will save them from there custome/ I mean evil pirates

      Our government will just roll over and give them what they want

        'Our government'? At some point we've really got to start asking whose government this really is, if they're willing to trample over the Australian public to serve foreign interests.

          You and I might ask that, but if by "we" you mean the general public, then it wont happen, because the foreign interests own the media, who, in turn own the minds of the general public. Your politicians may declare that they work for you, but that is just part of the illusion.

    So I could be charged for downloading a movie even though no one has to prove that what I downloaded was playable ie a movie, and not just some random collection of data which just happens to have the same title as a movie?

      Further to my previous comment I think this wider agenda is to allow US entities control of Australian citizens in Australia.

    welp my house is next to a hotel so im sure lots of downloads must be coming from rogue users there >.>

    Just keep denying that you downloaded the files for months and months and act confused about it. Then when it gets fully blown out and you go to court somehow let it be known that your WiFi was not password secure (just say you spoke to a friend about your legal issue and they went through some security measures and they mentioned securing your WiFi and you asked what that shit was about), even if it was secure all along.

    Surely if you stash your downloaded files (in the event of some crazy warrant/house raid) on a portable HDD and they find nothing on your PC there isn't much they can do if you claim that your WiFi was open to the public.

    That tactic might get you through a few warnings if you don't "see" (or respond to) the emails from your ISP.

    Last edited 21/02/15 12:53 am

      Ummm having a open Wifi is YOU'RE problem....as the account holder its your responsibility to ensure its safe and all use is legal AFAIK

        That's not a law. It's common sense and may be part of your Terms of Use contract with the ISP, but not something you can be charged with.

        Last edited 23/02/15 11:53 am

      Couldn't they then restore the file that you transferred off your computer to the HDD? There's free software that can restored deleted files.

        i dont know how to secure a wifi network

        but i know how to encrypt my hdd

          Im quite sure AU police have the tools to decrypt hard drives.

      The issue here is that the public may actually be better served if piracy becomes a crime instead of a breach of civil contract you can sue over.

      On the downside, it means you can be arrested and the cops have powers to investigate your hard drive and net traffic habits, a legal discovery process which media groups don't have.

      On the plus side, criminal law requires that guilt is proven beyond any reasonable doubt. Civil courts, however, only rely on 'the balance of probability'. If the balance of probability is shown that you probably downloaded the file, not that you absolutely provably did, then the court can find against you.

    Fine, let the rights holders have this.

    In return, customers should get:
    - legalized format shifting across all media (currently limited to music)
    - pressure for global release dates, or pricing indexation to reflect discrepancies
    - restrictions on geofencing practices, and greater availability of media
    - curbing of price inflation of media and software in Australia

    Even one of these would be enough to take an actual dent out of piracy. After all we all know this three strikes malarkey won't.

    This graduated response broken record lobbying by the copyright holders just keeps on going, I suppose it's easier for them than actually coming up with viable strategies to reduce piracy such as content availability and better pricing.

    In the meantime I'd suggest downloading options that don't advertise your IP address to anyone who dips their toe into the download swarm!

    Isn't such a system already in place in the US and isn't the US still a major downloader of copyrighted material? So stopping downloading cannot be the intention of the system. To me its real purpose is for the US movie industry to have another revenue stream (fines from unsophisticated downloaders gathered at the expense of Australian IPSs).

    If the litigiously motivated movie studios created a means freely available to the wider public that allowed persons to preview their content beyond a DVD jacket picture, there would be far less "piracy". If they spent half as much on such a system as they did on taking consumers to court, they would be way out in front.

    I would never intentionally copy anything that didn't belong to me, certainly not distribute it either! Narcynarcnarc...

    Last edited 23/02/15 9:37 am

    The fact that smaller isps dont have to deal with it because they are small is the equivelant of just saying "we actually dont care about everyone just enough to get us by"
    in saying that its all just becoming to crappy now, sure can use a VPN and hide myself or seedbox and everything but now its kinda disapointing the direction its going and just cant be bothered dealing with it anymore.

    The worst part of this debate is that there is almost no income generated from torrent style downloading which is what they are cracking down on here. If they stop/limit this type of free usage people are forced onto streaming sites which pack every aspect with ads to create revenue.

    This industry needs to stop fighting technology and start embracing it. Honestly, how much money does the creator or studio gain from me watching their TV show on free to air stations? maybe a cent or two yet when I try to stream it or watch online on a legitimate site they want to charge me several dollars! studios are having a laugh!!

    Stupid thing is, the majority of infringement notices currently sent are automated C&Ds for "attempts to copyright". You'll receive them shortly after you start downloading.

    Technically, its a pre-emptive thing, you havent actually commited any infringement yet and if you receive such notice, you should be about to successfully challenge it.

    Once challenged, (if the process is fast) theyre not allowed to send another notice within 14 days. so just go back and download it again after deleting lol

      It's beyond stupid. the only notice I have ever received from my ISP in regards to downloading an infringed copy of something was "the incredible spiderman 2"... I have never ever downloaded it and to this day have not even seen the movie, whats to stop this from happening to others especially the non-tech savvy - so what these guys propose is instead of "swatting" there's going to be remote down-loaders that stop your ISP from servicing you and shut your net connection down... Yeah lets see how that goes...

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