ISPs propose “5 strikes and you’re warned” infringement policy; copyright owners unsatisfied
An alliance of ISPs has proposed a self-regulated scheme to warn infringing users about the potential consequences of their activities. The proposal was released on 25 November, 2011, in the lead up to the opening submissions before the High Court in Roadshow Films Pty Ltd & Ors v iiNet Ltd, a landmark case that will determine the extent to which internet service provider (ISP) iiNet should be held accountable for the copyright infringements of its customers.
A graduated response
The scheme was released by the Communications Alliance, which includes members who service the majority of Australia’s internet subscribers: iiNet, Telstra BigPond, Optus, iiNet, iPrimus and Internode. The proposal is based loosely on the graduated “three strikes” response policy which has already found its way into French, New Zealand, South Korean and UK law, but, unlike many of these implementations, does not contain a disconnection penalty after repeated infringements and requires judicial involvement before ISPs disclose identifying information about suspected account holders to aggrieved content owners.
ISPs: warnings are enough to stop infringement
The Communications Alliance’s proposal is focused on education and warning, rather than punitive actions. The Alliance points to evidence from France and Canada—which shows that only a small minority of users who are sent a first infringement notice are subsequently sent second and third notices—to bolster its argument that simply warning infringers is enough to change their behaviour.
Under the proposal internet users whose infringements are detected by accredited copyright owners or licensees would be sent a series of five ‘education’, ‘warning’ and ‘discovery’ notices by their ISP, which is the only entity that can match the infringements to a particular account holder. Even after the fifth notice, however, ISPs will not provide the account holder’s details to the aggrieved rights holders without court-ordered preliminary discovery or a valid subpoena, nor will the ISP terminate or suspend the user’s account.
How the Communications Alliance’s proposed policy would work
Detection of infringing activity
Under the proposed scheme, it is the rights holders’ responsibility to detect and report suspected infringements to participating ISPs. Rights holders typically detect infringing peer-to-peer downloads of copyright works by logging the (publicly available) IP addresses of users who are downloading the infringing copy.
What is an IP address?
An IP address is a unique numeric identifier given to computers connected to the internet.
The IP address can be unique to an individual computer (such as a laptop connecting to the internet through a wireless broadband dongle) or shared by a group of computers (such as a group of computers connecting to the internet through a shared base station connected to the internet).
IP addresses are usually assigned randomly to residential users, from a range of IP addresses available for use by each ISP, and ISPs maintain records of which IP addresses were assigned to which account holders at what times.
Rights holders can, within 14 days of detecting potentially infringing activity by a user of a participating ISP, send a Copyright Infringement Notice to the ISP detailing:
- the copyright work infringed,
- the IP address of the potentially infringing user and
- the time and date of the alleged infringement.
Strike 1: Education Notice
Upon receiving a Copyright Infringement Notice, the ISP will determine whether the allegedly infringing IP number can be matched to an individual account holder at the date and time at which the infringement allegedly occurred:
- if no match is found, the ISP notifies the relevant rights holder;
- if a match is found, the ISP will send their account holder an “Education Notice” which includes information about the nature of the alleged infringement, some general educational material about copyright, and a warning that further infringements may result in further action by the rights holder.
Strikes 2, 3 and 4: Warning Notices
If an ISP receives another Copyright Infringement Notice which is matched to an account holder who has already been sent an Education Notice, then the ISP will issue a “Warning Notice”. The Warning Notice will inform the account holder:
- of the nature of the alleged infringement (including the copyright work infringed, date and time of the alleged infringement);
- the identity of the rights holder; and
- that further action may be taken by the rights holder.
Warning Notices will be sent for the second, third and fourth Copyright Infringement Notices received by an ISP and matched to an individual account holder.
Strike 5: Discovery Notice
In the event that an ISP matches a Copyright Infringement Notice to an account holder who has already received an Education Notice and 3 Warning Notices, the ISP will send the account holder a “Discovery Notice” which informs the account holder that:
- they have apparently failed to address the issues to which they have been previously been alerted;
- the rights holder may seek to apply for access to the account holder’s details by way of a preliminary discovery or subpoena application in order to bring infringement proceedings;
- the ISP will be required to comply with any valid court order or subpoena for the disclosure of such information.
The proposal includes the creation of a Copyright Industry Panel, to be established cooperatively by ISPs and content owners and which will run education programs about copyright infringement and also hear appeals by internet users who wish to dispute an education, warning or discovery notice they have received.
If an account holder does not receive a Warning Notice or Discovery Notice within a 12 month period, records of prior Copyright Infringement Notices will be “reset” and the next such notice to be matched to the user will result in an Education Notice being issued.
After an Education Notice or Warning Notice has been issued to an account holder, the ISP will not send any further notices to the account holder within a 21 day “grace period” to allow the account holder to seek legal advice and respond.
The Alliance has suggested that its proposed scheme by trialled for a period of 18 months, after which its effectiveness will be assessed. During this trial period ISPs will not be required to process more than 100 Copyright Infringement Notices in any one month and only residential account holders using landlines will be targeted.
Copyright owners unhappy
The Australian Content Industry Group (ACIG), which counts the Australian Recording Industry Association, Microsoft and the Copyright Agency Limited among its members, has already expressed its dissatisfaction with the proposal, with spokesperson Vanessa Huntley saying the proposal “falls well short of the expectations [the ACIG] had”.
Indeed it would appear that, aside from establishing a formalised process that would obligate ISPs to pass on warning notices to their account holders, the proposal does not give content owners any greater ability to prosecute infringements than is currently available. The Alliance’s requirement of judicial intervention before account holders’ details are disclosed, means that the cost and uncertainty of bringing infringement proceedings against infringing users is not reduced. The Alliance maintains that such independent judicial oversight is vital, and that in any event it expects the warning and notice scheme to deter all but the most determined infringers.
In the meantime, closed-door negotiations between content owners, ISPs and the Commonwealth Attorney-General’s Department continue, whilst the High Court deliberates on the submissions it received last week from the parties in the iiNet v AFACT appeal. Whatever the outcome, the decision will no doubt serve as a catalyst for some form of industry self-regulation, or legislative reform, to clarify the boundaries of responsibility between ISPs and their users.
We will keep you updated with any developments.