How film studios want to use data retention to crack down on piracy

How film studios want to use data retention to crack down on piracy

Summary: Data retention will be a useful tool in a proposal from the content industry to get ISPs to match IP addresses connected to alleged infringers with customer accounts.


A leaked draft submission from the content industry makes it clear that the Australian government's other controversial proposal — mandatory data retention — will be a useful tool in cracking down on online copyright infringement.

The discussion paper released by Attorney-General George Brandis and Communications Minister Malcolm Turnbull last month called for views on the best way to deter Australians infringing copyright online through downloading TV shows, films, and music. Some of the proposals put forward by the government favour blocking websites such as the Pirate Bay, and compelling ISPs to send notices out to customers who are infringing, with the ultimate result being deterrence or some form of punishment, be it through a throttled internet connection or rights holders taking alleged infringers to court.

Submissions are due by Monday, and none have yet been officially released by the government. However, a draft submission from the peak international copyright lobby groups, including the Australian Screen Association (formerly AFACT), the Australian Home Entertainment Distributors Association, and the Motion Picture Distributors Association of Australia, was leaked yesterday to news website Crikey.

In the submission (PDF), the studios largely welcome much of the government's recommendations for methods to crack down on copyright infringement, and detailed exactly how the infringement notice scheme should work.

The proposal matches that of the recently implemented US Copy Alert system, and sees the costs shared equally between both rights holders and ISPs for alerting customers when they have allegedly downloaded an infringing TV show or film.

"Copyright owners would pay their own costs of identifying the infringements and notifying these to the ISP, while ISPs would bear the costs of matching the IP addresses in the infringement notices to subscribers, issuing the notices and taking any necessary technical mitigation measures," the submission states.

"This is a rational approach to meeting the costs of a scheme. It means that the parties with the control oversteps in the process — rights holders have control over the investigative steps, which ISPs have control over the account matching steps — have the incentive to control and can control the costs of that step."

The shared-costs approach is not one favoured by the industry, in particular iiNet, which is also battling the government on another front, with the proposal for telecommunications companies to retain customer data, including IP addresses, for up to two years.

iiNet has previously confirmed that the company does not keep customer data, including assigned IP addresses, for any longer than it requires. Under a mandatory data-retention regime, iiNet would be required to retain all IP addresses assigned to its customers for a period of two years.

Although the government has previously said that data retention is not associated with copyright infringement policies, the two are inexorably linked, through the requirement of both copyright holders and law-enforcement agencies to match IP addresses against user accounts.

And in order to comply with any copyright infringement notice scheme, ISPs will be required to make sure that they retain logs of IP addresses long enough, so that when rights holders come knocking, they can match that IP address with the account holder.

If both data-retention and piracy laws come in, ISPs, in the meantime, could be slugged with the costs of not only retaining the data for the mandatory data-retention regime, but also for checking that data against IP addresses sent to them by the rights holders.

The studios opposed the government's proposal that rights holders bear the cost of the system, stating that the New Zealand system where rights holders pay NZ$25 per notice sent is "poorly designed" and "poorly implemented". They argued that it is uneconomic for rights holders to issue notices, and claimed that "anecdotal evidence indicates that the cost charged by some ISPs generates a profit for them".

This claim came despite evidence to the contrary from the industry in 2012 (PDF) that the cost to investigate each notice sent cost ISPs in the country between NZ$30.50 and NZ$104 per notice, with a cost recovery of between 24 percent and 81 percent

The submission claims that between August 2012 and August 2014, there have been 12,345 notices sent out, "equating to a mere 128 notices per week", with only 18 cases ending up before the Copyright Tribunal, and BitTorrent infringement rates returning to pre-legislation levels.

They were also supportive of website-blocking proposals, and indicated that although they are easily circumvented, it will stop most people from visiting sites like the Pirate Bay, citing internal research in the draft paper that has yet to be approved for disclosure.

"Recent research of the effectiveness of site-blocking orders in the UK found that visits to infringing sites blocked declined by more than 90 percent in total during the measurement period, or by 74.5 percent when proxy sites are included."

The paper also claimed that consumers would benefit from a reduction in online copyright infringement, stating that those who pay are "subsidising" infringers.

"Consumers who purchase legitimate content are subsidising the internet users who take illegally, because it is only the former that are contributing to creation and investment in that content — the latter are free-riding."

Turnbull is holding a forum on the proposals on September 9 in Sydney, with industry stakeholders from all sides speaking at the event. However, one vocal advocate for cracking down on copyright infringement, Village Roadshow CEO Graham Burke, will not be in attendance. ZDNet revealed last week that Burke told Turnbull directly that he would not attend a forum dominated by "crazies" only interested in the "theft of movies".

"These Q-and-A-style formats are judged by the noise on the night, and given the proposed venue, I believe this will be weighted by the crazies," he said.

"What is at stake here is the very future of Australian film production itself, and it is too crucially important to Australia's economy and the fabric of our society to put at risk with what will be a minuscule group whose hidden agenda is theft of movies."

Topics: Piracy, Privacy, Security, Australia


Armed with a degree in Computer Science and a Masters in Journalism, Josh keeps a close eye on the telecommunications industry, the National Broadband Network, and all the goings on in government IT.

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  • Fighting crime is not an excuse to kill privacy

    Thanks for your recap Josh. As a telco & privacy lawyer in Europe I am quite familiar with retention rules applying to ISPs.

    Data retention is something totally necesary in a world where cybercrime is becoming a common crime no matter if we tal about IP infringements or fraud identity. Nevertheless the worrying fact is the access of retained data without the proper warrant.

    Fighting the crime is something neccesary to guarantee the good working of any society. Yet the question we all must ask ourselves is: under what conditions do we want to fight crime? Personally I feel more confortable if a warrant is needed in order to put a control procedure in place.
  • History will repeat itself

    Data retention might be good as a way to fight crime, but when presented as an exchange of freedom for safety it will have usual terrible consequences. Massive internet "piracy" (getting for free that which I would never buy) will kill pipe dreams of the Australian film industry and nothing more and that is a good thing. It is also well known that downloads increase sales of that which is worth buying.
  • Wrong targets

    Here's a novel thought; why not go after the REAL pirates? Studies in the US have shown that the little people who pirate the most often do it out of curiosity and wouldn't buy it anyway. Some just like to collect for the numbers game. Some want to listen to the product before buying and this is often the only way to 'try before buy'. Some studies have also shown that there was an actual increase in income to the music companies when people were permitted to do this. Probably why the RIAA has mostly left us alone now.

    The REAL financial thieves are certain Asian (mostly) countries that allow their citizens to steal copyrighted material for purposes of duplication and sale. It seems that their are political reasons to leave them alone or fear that there may be trouble such as cyber attack or bogus legal counterattacks.

    Some of the biggest thieves in the US is the industry we refer to as "Hollywood" and the "music" business. They have tried to intimidate and harass people who they thought couldn't fight back with the cooperation of the press. The courts finally stopped the music industry from legal theft from the public. BTW, these are the same people who, for years, have tried to answer questions concerning their shortchanging the artists who created the material they are selling. Who's the thief here?
  • the rights holders want a free ride

    It seems that the rights holders want a free ride out of all of this. If this is permitted then the number of requests to ISPs to match supposed infringements, will sky rocket and so will the ISPs costs and we know where that will lead. The rights holders will have no restraints. The NZ system sounds good and is probably OK because both the ISPs and the rights holders are complaining about it.

    I would not be happy about any scheme that forced ISPs to give identity data to rights holders on request. If a particular user exceeds the piracy hit count then the ISPs should notify the rights holder of that event and the rights holder should then need to obtain a warrant to get the identity info.

    The part that concerns me about all of this is the potential for wrong identification. If a non infringing internet user releases an IP address and that is taken up almost immediately by an infringing user who downloads immediately then time of day is critical for correct ID. Mix that up with time zones and daylight saving and the potential for a wrong ID is high. Rights holders need some natural restraints of their own costs to ensure that what they say and do is correct else they can fling mud and the user will be expected to prove innocence.
  • What happens when the data is lost?

    Anything data saved is data that can be stolen. And when this data is stolen and you are blackmailed because you are a closeted gay watching gay porn or any other private activity, who is held accountable? No one is.

    If I am suspected of a crime than by all means get a court order to start monitoring my activity. Until then, do not invade my privacy.
    Rann Xeroxx
  • law

    It's a damned shame when the entertainment industry starts dictating how things will work on the Internet. Just goes to show you how money controls the government....
  • Orwell got it wrong

    He figured the state would overreach with its power and spy on us all to preserve the state's military and political power.

    Never in his wildest dreams did he imagine the state wielding its most fearsome weapons of surveillance to protect Mickey Mouse.
  • entertainment industries fault

    The entertainment industry has not provided cheap, content rich services in Australia. Data retention, site blocking and graduated response schemes are all a waste of time and money, not effective methods as they can all easily be circumvented by anyone with half a brain, these people will then show the less IT savvy how to do it and we will be back where we started.

    Piracy in Australia will not stop until there are easy to access, affordable and content rich avenues, ene of story.
  • Oi vey!

    1) Who bears the cost of data retention? It isn't free. Are the ISPs ultimately going to have to charge users more or will there be "a tax for that" so that consumers, either way, will have to PAY to be spied upon?

    2) With or without a court order, the idea of my meta data being able to be used offends me. If a user is under criminal investigation in relation to drugs, pornography or possible terrorist links then I can see the point but to say you have the right to spy on me because I just MAY do something illegal with movies or music is to blatantly label me a criminal. If you do that to me then you should be the defendant in court, not me! You cannot ruin a reputation because you suspect. Have proof or so much anecdotal evidence that it is overwhelming before making accusations.

    3) in case anyone has not realised as yet, none of this is HONESTLY about the film and music industries. It is just a happy vehicle for the Federal Government. All governments want to spy on their own citizens and thi is OUR Government's free ride down the path of control that will mean there is only the nominally agreed title that differentiates between 1940s style Communism and today's Australia.
    • ... a NEW tax

      the governments are proposing a new DATA Storage TAX to accommodate having to comply with this ludicrous situation .
  • Chase the real pirates, at the source

    Why are the rights holders not perusing the origin of the pirated material. For sure people are illegally downloading and consequently also re-distributing via BitTorrent, but where did it come from originally ?

    It certainly didn't come from Australia - as has been discussed many times, the content is often not available in Australia to start with, so why all the fuss about Australia ?

    Perhaps the effort should be directed at the source of the pirated material, agreeing international legal frameworks and legislation to protect the legitimate rights of the copyright holders.
    At the same time, perhaps something can be done to curtail anticompetitive content distribution caused by exclusivity deals leading to monopoly pricing.

    What a dishonest, selfish, illogical attitude from the Distributors.

    According to them, so called "Piracy" needs to be stopped so they can make more profit, yet they DON'T want to pay to stop it themselves. These much imposed upon Distributors want ISP's and anyone but themselves to pay extra so their profits are increased.

    Hey Distributors if YOU are going to make a profit out of it then YOU must bear the expense. Any other reasoning is fallacious.

    Surely it is time these Distributors were told in the best Australian tradition exactly where to go with the maximum foul language possible by our Politicians.
  • Blame the Phantoms

    I wonder if the moguls realise that movies are not actually created by accountants. I had an 'accountant producer' call me in with a 'great idea' he wanted me to write and direct. I sat down in front of him at his huge board-room table. He looked me in the eye, and with all the gravitas of God giving Noah the plans of the arc, he said, "A boy falls down a manhole."
    He said, "That's it. It's brilliant. I thought of it in the shower this morning."
    "So, what do I do?"
    He said, "Well, now you've got the idea, just go and write it and I'll see you next week."
    He then leaned over to his intercom and asked his secretary to bring in the XXX budget.
    I was dismissed.
    So, why do I not shed a single tear for the moguls?
    The quality of the rubbish they produce is the problem, not the pirates. If they lose word of mouth advertising by the pirates they will spiral down and disappear in cloud of belly button fluff.
    Can't here the same volume of strident activity from the 'real' film makers in Britian.
    Dr. Ghostly
  • taxes, corporate lawyers ...

    isn't it a strange world ...

    Most new DVD, BluRay players, set-top boxes , game console, and TV sets etc., all today use DIVX technology to decode DOWNLOADED movies !
    DIVX was originally part of the video hacking XVID, who decided to go pro and charge for the use of their tech...

    Even the BIG film companies are on the band wagon these days, you purchase a new DVD or Bluray disk, and it has on it a file which is a downloadable AVI or MPG file of the particular movie so as to be immediately playable on portable devices... go figure!

    The ones who are chasing the "online pirated films" are the greedy corporate lawyers - and what they don't see is that they will cause a collapse in the ISPs if all this filtering and
    URL blocking is set in place ...
    Now - IF the internet filtering causes a stop in video downloads , Will these companies which make the players and TVs SUE the corporate lawyers for loss of sales ? not to mention the ISPs loss of users - will they chase their loss of income back to the greedy film company lawyers ?

    And now, the governments are being sucked in to the void of online data retention or cloud storage - WE the general John and Mary will be forced to foot another TAX to pay for this cost of storage !

    One of the worst downloader engines was the old edonkey and emule networks, because of their use of internet explorers' backbone, it became easy for the corporates to track the users and what they were downloading.
    I'm sure that the film company lawyers placed files with certain film names onto the net as bait! - most were "fake files" which even had a phoney encryption that had to be unlocked from an online survey page etc. , ... and then they [the movie company lawyers] send out via the ISP, warning letters to the user that "they have been found to be downloading particular movie title(s) ..." - whether it actually was or not is irrelevant ... years ago I knew a few people who had threatening email and letters from Sony lawyers regarding certain TV or Movie titles they had supposedly downloaded - a couple of them said the files they ended up with were disguised pono films and not the actual film title the company reckons they had downloaded ...
  • they need to chase the film reviewers

    The film company lawyers should chase the reviewers who bag or poor review particular movies.
    A Good Example is the film from a couple of years ago -" John Carter "
    The original story was actually written in the MID 1800's by the author of Tarzan - Edgar Rice Burroughs !
    It is the Great Grandfather of ALL Sci-Fiction stories.
    Most sci-fi genre in the past 100 years has to some degree been modeled on this story.

    ... and now to the film reviewers - instead of taking a fresh view of the brilliance of the film production, some reviewers yawned and stated they had seen it all before , yaddah yaddah -
    Not realizing the story was written over 100 years ago - they totally canned the film ! resulting in a huge losses of viewing sales . Production costs in the 100s of millions - and only 10s of millions return from the box office !