update The Department of the Attorney-General has removed a section from its latest copyright discussion paper that had referred to a proposed "streamlined" process for copyright holders to access information about alleged copyright infringers.
The new five-page discussion paper (PDF), put up on the department's website over the weekend, now just refers to expanding the Safe Harbour provisions in the Telecommunications Act, which provide legal incentives to carriers to cooperate with copyright holders seeking to deter copyright infringement.
The original paper (PDF), released on Friday, sparked outrage over proposals to "streamline" the process for copyright holders to gain access to personal information of alleged infringers from an internet service provider (ISP).
The Department of the Attorney-General told ZDNet Australia in a statement that the paper originally released on Friday was a draft that was mistakenly posted online.
"A draft document which incorporated other issues not included in the Safe Harbour review was mistakenly posted on the departmental website. It was removed as soon as the error came to light. A clarification will be posted on the website," the department said.
"We believe that the ongoing departmental convened discussions between ISPs and content owners is currently the most appropriate forum to address these issues."
According to the original paper, to obtain the alleged infringer's personal information, copyright owners would be able to approach a judge or a federal magistrate with details, including the alleged infringer's IP address, the copyright material and the date that the material was either downloaded or shared. The copyright owner would pay a fee for this, and would also bear the costs incurred by the ISP.
The government had been considering such a scheme for a while, as was noted in the appeal judgment for the Australian Federation Against Copyright Theft (AFACT) case against iiNet over alleged authorisation of its customers' copyright infringement:
Finally, iiNet participated in the preparation of a submission on internet piracy provided to the Commonwealth Government in April 2008, saying that service providers will, and do, co-operate in any actions taken directly by the owners of copyright against file sharers. The submission said that the service providers do not approve, condone or authorise any person engaging in copyright infringement by any means, and that the service providers have repeat infringer policies in place. The submission proposed a streamlined preliminary discovery process in the Federal Court or the Federal Magistrates Court, whereby an application for discovery by the owner of copyright could be made according to a pre-agreed protocol, in return for which the service providers would not oppose such an application. iiNet asserts that none of the proposals in the submission were agreed to.
On Friday, the Pirate Party of Australia condemned the original discussion paper, which had relied on a report by AFACT entitled "Economic Consequences of Movie Piracy". It had been criticised by Electronic Frontiers Australia, among others, for the methodology used to claim that piracy cost Australia $1.37 billion between 2009 and 2010.
"It is disappointing that our government continues to base their opinions on such flawed data, and will now simply continue to do so behind closed doors," Pirate Party Australia acting secretary Brendan Molloy said.
On the revised paper, Pirate Party Australia president Rodney Serkowski said that the government was trying to suppress discussion on the "streamlined" process proposal.
"Not only are we seeing a clandestine process that excludes civil society and the public at a critical juncture in the development of policy, we are now seeing a deliberate attempt to suppress contributions from them. Perhaps this is because the outcomes of the 'consultative process' are predetermined, and the facade of 'open government' has to be maintained. Now that we have raised serious issues, like the streamlined invasion of privacy, the process of consultation has been heavily restricted," he said in a statement.
"Of course, this could only be administrative incompetence, but the previous actions of the Attorney-General's Department do not lend themselves to this explanation."
Updated at 11:52am 17 October 2011: Added comment from the Department of the Attorney-General