iiNet, Australia's third largest internet service provider (ISP), has said that rights holder intransigence in negotiations and the requirement for ISPs to hold more customer data as the reasons for why it will not participate in an infringement notice scheme.
Negotiations between the Attorney-General's Department, ISPs, and rights holders have been taking place formally for the past several years. The negotiations have struggled to progress over that time, with both sides blaming each other for the delays.
After working towards a trial infringement notice scheme that would see ISPs send notices to customers who are suspected of downloading infringing content, The Australian reported last week that iiNet would not participate in the trial. Telstra and Optus are understood to be participating in the trial scheme.
In a blog post on Friday, iiNet Chief Regulatory Officer Steve Dalby said that iiNet had no intention of participating in the so-called "notice-notice" trial for several reasons.
He said that rights holders were asking ISPs to enforce copyright while, at the same time, ignoring the lack of access to the content that is being infringed upon.
"The rights holders are still insisting ISPs should perform work on their behalf, instead of addressing what we have always said is the root cause of the infringements — the limited accessibility to desirable content, and the discriminatory and high cost of content in Australia," he said. "Infringements are a symptom — access is the problem."
The notice scheme would also require iiNet to retain more customer data, something iiNet wasn't willing to do, he said.
"iiNet won't support any scheme that forces ISPs to retain data in order to allow for the tracking of customer behaviour and the status of any alleged infringements against them," he said. "Collecting and retaining additional customer data at this level is inappropriate, expensive, and most importantly, not our responsibility."
Finally, he said that in iiNet's victory over the consortium of film and television studios known as the Australian Federation Against Copyright Theft (AFACT) in the High Court this year, the court had ruled that ISPs are not the "copyright police" for the rights holders.
He said that iiNet does not condone copyright infringement, and is still holding out for a commercial method to cut down copyright infringement that would include access to content, but he said that, for now, the ongoing government-led negotiations had stalled.
"We're still holding out for a commercial solution that will work for ISPs, the rights holders, and our customers that improves the supply of legitimate content, but it's clear that this is not going to be the outcome of the current talks," he said.
Since the High Court's ruling in iiNet's favour, the company has teetered on the edge of walking away from the negotiations. CEO Michael Malone said after the ruling that he would like to walk away, but Dalby insisted iiNet continue to participate to ensure that its views were brought to the table.
AFACT managing director Neil Gane told ZDNet that it was disappointing but not surprising that iiNet pulled out of trialing the "workable solution".
"A solution that will benefit not only the content industry and ISPs but, most importantly, consumers," he said.
"The content and ISP communities are not adversaries; we're partners. We both share commitment to rolling out innovative business models and delivering quality content in a timely manner to customers, as this is what they tell us they want."
A failure to develop an industry-led model may force the hand of the government to legislate and force ISPs to have an infringement notice scheme in place. AFACT had asked the Australian Law Reform Commission (ALRC) to consider, as part of its review of the Copyright Act, including ways to enforce copyright.
Pay TV company Foxtel has also asked for the government to consider implementing an infringement notice scheme, and the ability for content owners to have sites that facilitate copyright infringement, such as The Pirate Bay, blocked in Australia.