February 21, 2015
Copyright holders are looking for a win against Aussie pirates downloading movies such as Dallas Buyers Club. Photo: Reuters
ISPs will hand pirates over to the movie houses, potentially without a court fight, under Australia’s proposed piracy code.
As of September 1, Australian internet service providers will be forced to send warning notices to alleged movie pirates, under a draft Copyright Notice Scheme industry code unveiled on Friday. Get caught three times in 12 months and rights holders can “facilitate an expedited preliminary discovery process” – in other words ask your ISP to hand over your details. While still going through the courts, it would bypassing a drawn-out courtroom drama like the current battle between Australian ISP iiNet and the backers of Academy Award-winning film Dallas Buyers Club.
Your ISP still has the right to appeal this request, but the appeal is unlikely to be successful unless the rights holders haven’t followed the process set down in the draft. To cite the draft agreement between ISPs and rights holders;
3.12.8 An ISP must act reasonably to facilitate and assist an application by a Rights Holders for Preliminary Discovery to the extent that such orders are sought:
(a) following Rights Holders and ISPs observing the procedures prescribed by this Code in relation to an Account Holder whose IP address was included on a Final Notice List provided by that Account Holder’s ISP to a relevant Rights Holder;
(b) in relation to the identity and address (if available to that ISP) contact details of that Account Holder; and
(c) for provision of copies of Notices sent to that Account Holder that were the subject of the Final Notice List.
Refusing to comply simply because the ISP wants to protect its customers, or feels the scheme is flawed, is unlikely to stand up as a defence. If the appeal is lost and the court issues an order, the ISP has no choice but to dob you in.
Rights holders will identify infringers by their IP address, which ISPs allocate to each customer. The rights holder’s allegation must be independently audited and approved by a Certification Body, with reasonable grounds to believe that an account holder or “persons other than an account holder” has infringed the rights holder’s copyright. In return, the ISP receives indemnity from prosecution over the incident.
The draft code is specifically limited to residential fixed home internet connections. ISPs will be forced to keep track of customers’ IP addresses and be obligated to issue an escalating series of warnings to those accused of illicitly downloading movies and TV shows.
Account holders accused of infringing copyright will be issued an Education, Warning and Final notice, which do not need to relate to works owned by the same rights holder. Notices must be issued within seven days of the infringement and subsequent notices must be at least 14 days apart, to give the accused time to change their ways after receiving the previous notice.
If an account holder is issued an Education, Warning and Final notice all within 12 months their ISP will, on the request of a rights holder, “facilitate an expedited preliminary discovery process”. In other words, after three strikes in a year your ISP will be expected to hand over your contact details via the courts without a fight. The draft doesn’t spell out exactly on what grounds the ISP can appeal, but an appeal is only likely to succeed if the rights holder hasn’t followed the rules.
Account holders can challenge notices, with a $25 fee, and the challenge will be handled by an Adjudication Panel. The $25 fee is refunded if the challenge is successful.
The draft code makes no mention of specific sanctions as part of the three-strikes process, such as threatening to cut off internet access or throttling internet speeds. Nor does the draft spell out the consequences of receiving three notices in 12 months, other than being dobbed in to the rights holder. The scheme would be re-evaluated after 18 months and then every five years, although the question of funding has been left unresolved.
The 34-page draft code is open for public consultation until March 23, after which it will be submitted to the Australian Communications and Media Authority to meet the federal government deadline for action. ISPs and rights holders have developed the code together, with the government threatening to legislate if they can’t reach an agreement. Government legislation would almost certainly be more harsh than what’s proposed in this draft.
Does the proposed three-strikes rule sound fair? Would it force you to change your ways?