US piracy deal right for Australia: AFACT

The Australian Federation Against Copyright Theft (AFACT) has welcomed reports that US internet service providers (ISPs) and film studios are close to an agreement on how to deal with piracy; however, the Internet Industry Association is adopting a wait-and-see approach.

Last week, ZDNet Australia's sister site CNET revealed that a deal was close to being signed off between a group representing some of the biggest US ISPs and a number of media companies to deter users from infringing on copyright. The proposal would see ISPs issue written warnings to users caught illegally downloading copyrighted works. If the user continued to illegally download material, the ISP would eventually push a number of punishments, including limiting bandwidth or speed or only allowing the user to access certain websites. It would be at the ISP's discretion as to whether repeat offenders would have their accounts terminated.

According to sources, ISPs and copyright holders would share the costs for the operation of this system.

In Australia, AFACT has been pushing for a similar system, taking iiNet to court in 2008 alleging that it authorised its users to infringe on copyright by not acting on infringement notices sent by AFACT. It lost both the case and the appeal, but AFACT is now seeking to have the case heard in the High Court. The organisation told ZDNet Australia that it would like to see a system in Australia like that being negotiated in the US.

"This is no different to what we have been asking ISPs to do in Australia — send education notices to their customers, and then, for those repeat infringers who choose to ignore the education notices, implement a range of sanctions from those available to them and in accordance with their terms and conditions, to prevent continued copyright theft," AFACT said.

One of the contentious issues in the US model is the means of proving that a user has infringed on copyright, and it was this burden of proof that was a sticking point in one of the judge's rulings on the iiNet appeal. Under iiNet's own proposed model, this burden would shift to an independent mediator, which would investigate the claims of the copyright holders, and the costs of investigation would be shared between ISPs and copyright holders, as per the US proposal.

The Internet Industry Association is in the process of working on an ISP code of practice for dealing with piracy at an industry level, and outgoing CEO Peter Coroneous told ZDNet Australia that providers would be reluctant to come to an agreement with copyright holders until the iiNet court case is resolved.

"All eyes are on the High Court, who is due to hear a leave application to appeal the Full Federal Court's decision in August or early September," he said. "The prevailing view in the industry is that the High Court will hear the appeal so that it can pronounce on the question of authorisation, basically its first opportunity to do so in 25 years. The outcome of the appeal will put everyone in a position of greatest certainty.

"I don't see much appetite to negotiate a set of responses like those being developed in the US until the case is decided."

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