AFACT seeks to automatically bypass law

The Australian Federation Against Copyright Theft (AFACT) wants to have their copyright infringement notices automatically bypass the internet service provider (ISP) and find their way directly to the customers, but it also risks bypassing the law.

We won't know until sometime next month on whether AFACT will be allowed to mount a High Court challenge to the unfavourable federal court ruling in its case against iiNet over copyright infringement. Until then, AFACT is pushing ISPs to start policing copyright infringement on their networks, citing paragraphs from the ruling, where Justice Arthur Emmett argued that ISPs (provided they've been given a convincing amount of evidence) would be compelled to act on notices of copyright infringement provided to it from copyright holders such as AFACT.

Earlier this month, Exetel was approached by AFACT executive director Neil Gane, and told to take steps to act on copyright infringement within seven days or face action from the federation.

In reply, Linton said Exetel would obey the law, but did not respond to the organisation's demands.

It seems AFACT didn't take too kindly to his response, with a follow-up letter delivered yesterday (and sighted by ZDNet Australia), providing details of Exetel users it tracked using DtecNet software, which it believes are infringing on copyright and asking Exetel to meet with AFACT to improve its copyright infringement policy.

"AFACT is fully aware that Exetel has a copyright policy in place and AFACT would welcome the opportunity to meet with Exetel to discuss how AFACT and Exetel can work together to enhance the efficacy of Exetel's graduated response process," Gane said in the email. "For example, we could discuss the implementation of a standardised automated processing system that could integrate with your current network."

This would almost take the shield of the ISP away from the customer.

Exetel has a three-strikes policy in place for copyright infringement, where if three or more notices are received about a particular user, Exetel reserves the right to disconnect the customer as part of the terms and conditions for its broadband plans. During the original iiNet case, Exetel CEO John Linton had said that he had an automatic system in place for forwarding infringement notices to customers, but his response to AFACT yesterday highlighted that the federation's notices weren't easy to work with.

"The crude and extremely difficult manual format your organisation chose to adopt during your previous 'program' (and again now) is pointlessly cumbersome and costly; I assume for you as well as any ISP you choose to send your notices to," Linton said.

Linton also questioned why Exetel was targeted by AFACT instead of one of the bigger fish in the telco pool.

"As you must know, Exetel is a very small company and compared to Telstra, Optus and TPG, we carry a minute percentage the type of traffic you refer to in the first paragraph of your letter," he said. "Why you would choose to threaten us in the ways you have chosen to do when we couldn't possibly affect your clients in the ways a major carrier does can only be conjectured upon."

There appears to be a strategy behind targeting smaller ISPs and trying to get them to implement an AFACT-approved automatic infringement delivery system, however.

As one high-placed industry source told me recently, under current law AFACT could enforce copyright by seeking a court order. But this is time consuming and costly. It's easier to bypass the legal process entirely and threaten smaller ISPs that would (in AFACT's mind) be more likely to roll over and give into AFACT's demands without investigating the legality of such a system for themselves.

There's no doubt that despite losing the last appeal, AFACT's case was strengthened by the judgement. Yet there's no indication that the notices AFACT is currently dishing out to Exetel and others are strengthened to the degree that the judgement called for, so how are we to know whether it is actually legal for AFACT to try to force the ISPs to implement such a system?

The reason why the Internet Industry Association and iiNet are looking at alternate policy models for dealing with piracy is that they're seeking to maintain the rights of content owners and the users. This means transparency in the process of dealing with those believed to be infringing on copyright and having a method for users to appeal the ruling if they believe they've been hard done by. AFACT is rather less transparent in its proposal, declining to comment to ZDNet Australia on its infringement notices, or its proposed automatic notices as these were "operational matters". How can the public trust that they're being handled fairly when AFACT wants to cut out ISPs and the law and refuses to be open about how it operates?