Australian ISPs agree to three-strikes-plus-court-order anti-piracy plan

Scheme looks fierce, but has loopholes that will encourage some illegal downloads

Australia's internet service providers (ISPs) and Big Content have released a first draft of a proposed anti-piracy scheme.

The TL;DR version is that the plan calls for Big Content to indemnify ISPs, so that after a three-strikes regime has played out in letters ISPs hand over customer contact details and Hollywood can let slip the lawyers of war.

Plenty more detail can be found here (PDF), in the thrillingly-named “INDUSTRY CODE C653:2015 COPYRIGHT NOTICE SCHEME PUBLIC COMMENT VERSION -20/2/15”.

Let's get into that document, which outlines a scheme whereby rights-holders must develop a standard Infrigement Report, so that ISPs can automate processing of incoming allegations if they so desire. ISPs may not have to investigate all allegations: the code says “No ISP will be obliged to process more than a [minimum specified number] of Infringement Reports during a given calendar month during the initial 18 months of operation of the copyright notice scheme.”

A critical element of the Infringement Report is an indemnity to the ISP: without that being present, carriers can sit on their hands forever.

If all is in order, ISPs must then check to see if the alleged infringement occurred on a real IP address. If so, it must then send the person using that address at the time of the alleged piracy one of three letters.

The first letter is an “Education Notice” explaining that an allegation has been made, complete with times, dates and the allegedly accessed content, plus offering information on why they received the notice and links to web pages about piracy (including information on legitimate sources of content). Education Notices also spell out that the individual in receipt of the letter could be sued, but also include “acknowledgment that the detected alleged infringement may not necessarily have been undertaken by the named Account Holder”.

A second allegation of naughtiness within twelve months will result in the despatch of a “Warning Notice” that does all of the above, plus reminding recipients this is their second strike.

The third letter is a “Final Notice” and contains pretty much the same content as the first two. There's one big difference: ISPs are required to secure “an Acknowledgment of the Account Holder’s receipt of the Final Notice”.

Subscribers can appeal at this point if they feel any of the Notices were sent in error.

But once a Final Notice goes out, Big Content gets teeth: rights-holders who sign up to this code can request a list of recent Final Notices from ISPs. Those lists contain no data that identifies a customer, but the plan suggests rights-holders with a list of Final Notices in hand “may elect to lodge an application with a Federal court or tribunal for Preliminary Discovery seeking to obtain access from an ISP to an Account Holder’s identity and contact details.”

Under the code, ISPs “must act reasonably to facilitate and assist an application by a Rights Holders for Preliminary Discovery”. And if a Court order an ISP to hand over personal details, the ISP “must comply with a final court order to disclose the Account Holder’s details to the Rights Holder.”

The proposed scheme will be overseen by a five-person “Copyright Information Panel” with two members from ISPs, two from rights-holders and one from “the Consumer Organisation”, a yet-to-be named consumer advocacy group.

The draft is just that: punters are welcome to toss in their suggestions about it. It also includes a provision for a review of the scheme's operations 18 months after it kicks off.

The Australian Communications Consumer Action Network (ACANN) has already furrowed its brow about the scheme, declaring the $25 fee to challenge Notice a “fine by stealth” and worrying about the cost the scheme imposes on ISPs.

+Comment The proposed scheme also looks a little toothless: there's a big “the dog ate my homework” excuse waiting to be made in the acknowledgement a third party may have done the downloading. In other words, those meddling kids! Or that chap I saw on the street with a Pringles can.

Those who bother to read the code will also be able to figure out they can torrent twice a year and stay under Big Content's radar, as accumulating one Education Notice and one Warning Notice won't put downloaders on Big Content's litigation radar. And the count resets to zero every twelve months. Awholeseasonofthatshowyoulike.torrent as a twice-a-year indulgence will still be on the table without much risk to downloaders. ®

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