AU music industry body attacks ISPs over copyright stance
Responding to questions of the AUSFTA's capability to balance the rights of copyright owners and those of ISPs, Speck contested that ISPs will benefit from the FTA and that they "already have protections in their contracts".
"Quite simply, the one thing they want is less responsibility than any other corporation for activity that takes place in their own infrastructure that they profit from," said Speck.
However, the Internet Industry Association's (IIA) Peter Coroneos stated in a submission several weeks earlier that he harboured some concerns for ISPs over "new obligations" in the terms of the agreement.
"Our view at this stage... is that we still have some concerns that we initially had, but we are fairly confident that there is enough flexibility in the language... to preserve the balance that exists under our Australia copyright law," he said.
Coroneos put forth a proposal to the committee to establish a "set of principles" that the IIA consider "non-negotiable positions that should remain in Australian copyright law".
The "implementation principles" that the IIA says should "guide the drafting of legislation to give effect to the FTA" comprises 20 dot points on the liability position of ISPs.
The list includes clauses to litigation that state "service providers should not be regarded as having 'actual knowledge of an infringement' without a court order declaring that an infringement has occurred".
It also proposes that "service providers should not be regarded as 'becoming aware of facts or circumstances from which infringement was apparent' unless it receives an effect take-down notice".
However, Speck maintains that ISPs are well aware of user activity occurring under their provision.
"They invariably find customers when they are served with discovery or preliminary discovery orders, but they consistently take a position that there is an Internet cloud through which passes a stream of data into the ether and it is beyond control," Speck told the Senate Committee.
Speck said that MIPI had been sending take-down notices to ISPs for six or seven years and have "rarely had a problem with any of them".
"All the technical fantasies about not being able to identify customers and not being able to identify information get revisited and abandoned in the face of evidence," he said.
Speck says that most corporations want to comply with the law, and as such a formal process of take-down and litigation is not required.
"From the cases we have taken it is very obvious that (1) the nature of cases is not likely to change and (2) we have been applying no more than the established copyright law," said Speck.
MIPI issued 120 take-down notices in 2004 said Speck, with only one case developing in contrary to the action.
"Unless the ISPs or those associated with them become total anarchists, nothing is likely to change," said Speck of implementing a formal take-down process. "The prosecution rate is not going to change because most of these corporations do want to obey the law; they do want to comply and do want to minimise risks and liabilities".
Speck said concerns from Internet industry affiliates over the lack of formal procedure in Internet content take-downs and liability are "driven by a range of fallacies" that he says are contrived with intentions to achieve "future commercial positions".
"The Internet industry makes a great deal of money from the traffic in illegal sound recordings," said Speck. "It does so by turning a blind eye to or adopting some of the fictions or mythology of the Internet."
"These people [ISPs] would like to be completely immune from liability for the kind of activity every other species or corporation would be responsible for."