Who pays left out of ISP anti-piracy code

Telco industry body Communications Alliance has unveiled its ‘three strikes’ industry code for Internet service providers, submitting the code for registration by the Australian Communications and Media Authority (ACMA).

Registration with ACMA will oblige ISPs to abide by the code.

Most of the fundamentals outlined in the public draft published by Comms Alliance in February remain: The scheme involves a series of up to three notices within a 12-month period to be sent to ISP customers alleged by rights holders to have engaged in unauthorised downloads of copyright materials.

Although ISPs are not expected to disclose the personal details of their customers unless a rights holder obtains a court order, they are expected to facilitate an application for preliminary discovery in the case of customers who receive three notices within 12 months.

The scheme only covers residential fixed line Internet accounts.

The scheme includes an appeal mechanism for accounts holders that receive three notices, and unlike in the draft version there is no $25 fee attached to the process.

That fee had been a source of criticism by consumer advocacy group Choice.

Who pays for the scheme — a question that has derailed previous attempts to introduce a graduated warning system in Australia — is still not outlined in the code.

“The Scheme is to be initially funded by commercial agreement negotiated between the ISPs and rights holders to allow for up to (in aggregate) 200,000 Notices to be processed and sent by all ISPs to Account Holders in each 12 months of operation of this Code commencing as and from when the first Notice is sent pursuant to this Code,” the code states.

“There are still some commercial details, including elements of the scheme funding arrangements, to be finalised and the finished product must meet the approval of the ACMA, but all stakeholders believe that the Code can be an important tool towards the shared objective of reducing online copyright infringement in Australia,” Communications Alliance CEO John Stanton said.

The version of the code released earlier this year for public comment stated that ISPs and rights holders were “cooperatively undertaking further work” to “quantify the costs of meeting the specific operational responsibilities” and “determine how these costs should be fairly apportioned between ISPs”.

The unveiling of the code comes just a day after a Federal Court ruling that will give Dallas Buyers Club LLC the ability to send letters to customers of iiNet and other ISPs alleged to have illicitly downloaded the 2013 movie Dallas Buyers Club.

In other jurisdictions Dallas Buyers Club LLC has been accused of ‘speculative invoicing’: Sending letters to alleged pirates offering them impunity from any copyright-related legal action in exchange for a fee of thousands of dollars.

Although ISPs’ opposition to DBC LLC’s motion for preliminary discovery failed, iiNet and Comms Alliance both indicated yesterday that they viewed conditions imposed on DBC LLC, including court oversight of any letters sent to ISP subscribers, as a victory for consumers.

The ‘three strikes’ code doesn’t limit the ability of rights holders to take legal action against pirates.

The Australian Communications Consumer Action Network (ACCAN) today said it was concerned that the copyright code would streamline speculative invoicing.

“Under the Code, internet service providers (ISPs) will be forced to keep evidence of online copyright infringement and send infringement notices to customers,” said ACCAN CEO Teresa Corbin.

“The cost of running the scheme will be passed on to consumers through higher internet bills. We are calling on the Australian Communications and Media Authority to subject the scheme to a cost benefit analysis by the government Office of Best Practice Regulation and ensure it meets appropriate community safeguards.”

The introduction of an industry code is part of a broader push by the government to clamp down on online copyright infringement, which also includes legislation that will allow courts to order the blocking by ISPs of overseas pirate websites.