Telstra wants film studios to sue downloaders

Telstra has backed a proposal that would allow film studios to take its customers to court after those customers have ignored a number of warning notices about downloading copyright-infringing TV shows or films.
Written by Josh Taylor, Contributor

Telstra has supported Communications Minister Malcolm Turnbull's call for rights holders to sue customers who have ignored warning notices and have continued to download copyright-infringing TV shows or films, with rights holders bearing the cost.

Last month CEO David Thodey said he had a "very strong view" that copyright infringement was "theft", but any scheme to deter customers downloading infringing TV shows and films needed to be ubiquitous and fair.

While the ISPs have said they would prefer a notice scheme where users alleged to have infringed receive a number of notices before their details are handed over to rights holders to sue — a system favoured by Turnbull, too — the film studios view this as an overly burdensome and costly system for them, and would prefer other deterrence measures, including throttling internet speeds of repeat infringers.

Telstra, which owns a 50 percent stake in pay television company Foxtel, faces the issue of addressing copyright infringement from both the position of an ISP, and the joint owner in a creator and distributor of content, but in the company's submission to the government's online copyright infringement discussion paper, it backed the stance of its fellow ISPs.

"We propose an education notice scheme for consumers who are identified via their IP addresses as downloading content without the rights holders' permission. This scheme would also include a streamlined judicial process for the small number of alleged 'repeat infringers', which would provide an ability for rights holders to seek judicial relief against these infringers,' Telstra said in its submission.

"Our approach offers a balanced incentive for all stakeholders to participate and to work cooperatively to reduce online infringement in Australia. It also protects consumer rights and privacy."

Much of the disagreement between film studios and ISPs is over who bears the cost of the system, with a leaked draft of the film studios' submission indicating they prefer each party to bear their own costs, while ISPs want to be compensated for enforcing copyright on their behalf. Telstra said rights holders should bear the costs of the system.

"A principle of any copyright enforcement mechanism should be that as copyright is a proprietary right, the copyright owner must bear primary responsibility for enforcing its rights. So as part of the proposed scheme, rights holders would be responsible for meeting ISPs reasonable costs," Telstra said.

The company also backed another controversial government proposal that would see infringing websites, such as The Pirate Bay, blocked under court order, stating it would "directly target the source of copyright-infringing content"

That proposal drew strong criticism from the Institute of Public Affairs. The organisation — which has been described by Attorney-General George Brandis as "Australia's oldest and, in the view of many, most influential political think tank" — said (PDF) the proposals would have an "unacceptable impact on freedom of speech" and was no different to the failed mandatory internet filtering policy of the former Labor government.

"The policy resembles the previous Labor government's internet filter, and, like the internet filter, represents a threat to freedom of speech and digital liberty," the IPA stated in its submission.

Additionally, the IPA said that the filter would be ineffective, because the use of virtual private networks (VPNs) would allow the average internet user to bypass the filter.

"This simplicity makes one of the common claims in copyright infringement crackdowns — that the goal is not to eliminate expert, or dedicated infringers, but to raise the cost for novices — inapplicable to the injunctive relief proposal," the IPA said.

"The skill level required to use the BitTorrent protocol is as high as using a VPN, which is to say, neither require much technical knowledge at all."

The Australian Communications Consumer Action Network said in its submission that the website-blocking proposal could potentially block non-infringing websites, and there needed to be a method for users to present arguments against blocking such sites.

For repeat infringers, ACCAN has said that there should not be fines handed out to customers, because it is difficult to establish who is liable for online infringement on any one account, and account disconnections must also be ruled out.

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