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No money, no piracy action: IIA

Internet service providers won't implement a scheme where they approach their users about copyright infringements if they weren't compensated, the Internet Industry Association (IIA) has said.
Written by Suzanne Tindal, Contributor

Internet service providers won't implement a scheme where they approach their users about copyright infringements if they weren't compensated, the Internet Industry Association (IIA) has said.

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Yesterday the Australian Federation Against Copyright Theft (AFACT) pointed out that New Zealand's decision to charge rights holders an amount for each copyright notice they ask internet service providers to follow up on was out of line with the US's procedure, where it said ISPs and rights holders bore their own costs.

However, the iiNet chief regulatory officer Steve Dalby and IIA have said that Justice Arthur Emmett had said that there would need to be a price paid for notifications in his ruling on the appeal of the federal court case that AFACT brought against iiNet.

AFACT tried to have the court rule that iiNet had authorised its users to infringe copyright by not acting on infringement notices the federation had sent. However, iiNet won both the court case and the appeal.

Emmett had said that part of the reason it was reasonable for iiNet to not have acted on the notices was that the rights holders hadn't offered any form of compensation for doing so, IIA said.

"Clearly, cost recovery is an important component of any potential response for ISPs," the association said, adding that New Zealand's move and Emmett's words had brought an expectation of compensation if Australia went down a path similar to that of its neighbour.

iiNet said that the NZ$25 fee reflected genuine costs.

However, the IIA pointed out that cost wasn't the only issue which made providers hesitate at helping out rights holders with copyright infringement allegations. Other concerns include that due process is followed, that there is presumption of innocence of the users and that the privacy of users is ensured.

After the court decision, the IIA had said it would develop a code of conduct, saying it was necessary to give providers greater certainty around their legal rights and obligations.

"The iiNet case has provided us with welcome guidance on where responsibilities should begin and end, but falls short in defining reasonable steps intermediaries should take in responding to allegations of infringement by their users," said former IIA chief Peter Coroneos at the time. "The code will address this gap."

The code is now in its second draft.

AFACT recently started sending letters to providers, telling them to act on infringements or expect a lawsuit. IIA said there had been some degree of consultation between itself and its members on the issue, but it would not say what action it was advising its members to take.

The IIA said that commentators who had drawn the conclusion that the iiNet ruling for the appeal presented a roadmap for future action against internet service providers were over-interpreting the decision, since the judge's comments were made "in obiter" — not as a central principle of the case and without the same procedural weight. However the judges comments on price were also made in obiter.

iiNet also released a whitepaper around the same time, which suggested a way that ISPs and rights holders could tackle the copyright issue.

iiNet thought that copyright owners should provide the results of copyright infringement investigations to an independent body, which would then assess if the evidence was credible enough to follow up with the ISP. If so, the ISP would provide the contact information of the infringer to the body, which would issue notices or seek penalties for repeat infringers.

iiNet's Dalby said that the ISP had been pleased with the response to the paper.

"Many of the underlying principles are not novel and simply spelled out what representatives from both content providers and telecommunications companies thought on the matter," he said.

"Disappointing, though, was the lack of interest from consumer rights organisations and government. Consumer rights consider it a low priority and government believe it is entirely within the scope of industry."

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