APC Magazine has a very interesting ‘feature’ today on MIPI, the friendly-sounding but definitely serious enforcement arm of the Australian Record Industry (doesn’t it just make you think it’s the name of a Muppet figure from Sesame Street? Hi, I’m Mippy. Who wants to play a spelling game with me? Can you spell P-I-R-A-C-Y?)

Anyway, name jokes aside, this is a serious report. It deals with the identity of MIPI, copyright enforcement strategy in Australia and likely shifts in that strategy (will we have more criminal enforcement?), and the settlement of the Australian BitTorrent case.

The first part of the report is on the settlement of the ‘landmark’ case against ISP Swiftel in relation to the use of BitTorrent, and in particular, the hosting of BitTorrent hubs. The case came out of raids, in March 2005, on Swiftel’s premises. At the time, MIPI head Michael Speck said:

‘“We have identified Swiftel as an ISP which has adopted BitTorrent technology to link infringers to music clips and sound recordings. We believe hundreds of thousands of downloads have been conducted during the last year in breach of copyright laws.

These raids are a new and important development in our fight against internet music piracy. The misuse of BitTorrent technology allows the high-speed download of large files from a wide number of sources.

MIPI has identified this Australian ISP as using the technology allegedly to conduct high volume sophisticated linking to illegal sound recordings and music video clips for its customer base. Songs, video clips, television shows and movies are being distributed.

The BitTorrent/Swiftel case was interesting for a number of reasons.

First would have been an early test of changes to digital copyright law resulting from the FTA with the US.

Second, it was started in the Federal Magistrates’ court, leading to legal skirmishing when the ISP sought to have the case transferred to the Federal Court, on the argument that a case about new, difficult copyright laws should be heard in the more specialist forum with more specialist judges. The copyright owners resisted the transfer, at first successfully, but ultimately unsuccessfully – the case was transferred to the Federal Court. Both I, and David Starkoff, commented on this little legal skirmish at the time.

Third, it was about BitTorrent, and the liability for copyright infringement that might arise from BitTorrent scenarios. BitTorrent is a technology for P2P file distribution – even more distributed, and efficient, than P2P technologies of the Kazaa era. Wikipedia describes it as follows:

‘With BitTorrent, files are broken into smaller fragments, typically a quarter of a megabyte each. As the fragments are distributed to the peers in a random order, they can be reassembled on a requesting machine. Each peer takes advantage of the best connections to the missing pieces while providing an upload connection to the pieces it already has. This scheme has proven particularly useful in trading large files such as videos and software source code. In conventional downloading, high demand leads to bottlenecks as demand surges for bandwidth from the host server. With BitTorrent, high demand can actually increase throughput as more bandwidth and additional “seeds” of the completed file become available to the group. Cohen claims that for very popular files, BitTorrent can support about a thousand times as many downloads as HTTP.’

BitTorrent provides some interesting issues for copyright infringement and copyright enforcement. As a protocol, BitTorrent has lots of legal uses – it has been used particularly to distribute large files, for example, distributions of Linux. Enforcement in the BitTorrent context has mostly, it seems, been targeted not at the writer of the software (this is a good thing!), but at ‘BitTorrent Hubs’ like Lokitorrent, which ‘clearinghouse for links to pirated copies of movies, TV shows, software and music’. In other words, enforcement has been targeted at those who provide ‘directions’ to the infringing files. According to MIPI, this is what Swiftel were doing. It appears they’ve now admitted it. For quite a good background on the ‘who is getting sued, and how’ issue, this story on CNet is quite good.

It’s interesting to see the case settle. I wonder whether Swiftel ran out of money to fight the case? Did it get no support from other ISPs? Did it consider itself basically stuffed after the Kazaa judgment, where Sharman were held liable for authorising copyright infringement as a result of their activities in supplying file-sharing software and encouraging its use?

Or did MIPI/ARIA just get tired of the legal fight? Were they, perhaps, satisfied with the Kazaa judgment , and the Cooper judgments – both of which deal with secondary liability for copyright infringement, and both of which came out, ultimately, in favour of the music industry plaintiffs? I wonder what implications this has for ISPs more generally?

Apparently, settlement was announced with a joint press statement. The statement is suitably contrite on Swiftel’s part: to quote the statement as quoted in the APC report:

‘“Swiftel regrets that it has not taken enough action to date to stop internet piracy. We are committed to implementing a new set of industry leading compliance programs to protect the music industry…
“In a step-by-step process Swiftel has undertaken a sophisticated regime that manages the receipt and actioning of copyright infringement notices issued by copyright holders…That regime has resulted, and will continue to result, in infringers being disconnected from Swiftel’s networks in appropriate cases.’

As an aside, I’ve often wondered: in an era of ubiquitous computing, and always-on Internet, where so much is only accessible via the Internet and where children bring home homework that requires the Internet – when is it ‘appropriate’ to disconnect a user from the Internet? How long is it appropriate to disconnect them for? Interesting issues indeed.

The other news in the APC Magazine report is the resignation of MIPI’s relatively recently appointed head. After being headed by Michael Speck for something like 11 years, MIPI acquired new head Michael Kerin in April 2005. Now, he’s gone – 6 months later. Apparently he’s moving to AFACT – the Australian Federation Against Copyright Theft’, the anti-piracy body of the Movie industry, and producer of that woeful set of anti-piracy ads that I criticised a long time ago for being (a) misleading and (b) lame (oh, and I wasn’t the only one who thought so) (and yes, I know the AG launched the campaign).

Hey, maybe Michael Kerin will actually do something about AFACT’s website. It’s been sitting there for over a year now, promising to get more exciting…

Actually, the more interesting news in the story about the resignation is this little tit-bit:

‘APC understands that ARIA is considering more criminal cases than civil cases in a bid to cut legal costs.

Criminal cases would allow ARIA stakeholders to leverage police prosecutors rather than long term legal partners Gilbert & Tobin.’

I wonder what the relevant law enforcement authorities think about that? And it’s ominous indeed given the discussion in the AIPJ of the weaknesses, or problems, in the criminal copyright enforcement area. But it’s consistent with the CNET story, linked to above, which also states that the shift is towards criminal cases. Wouldn’t it be interesting if Australia bypassed the ‘civil suits against individuals’ stage, and moved to a criminal enforcement stage? I wonder how consistent that would be with the relatively long-standing policies of the government against over-use of criminal enforcement in the private context?

Read the APC Magazine report. It’s interesting stuff. It raises all kinds of questions in my mind about all kinds of issues. I can’t even begin to answer them. In particular, it really does make me wonder where copyright enforcement is going to go next here in Australia. We live in mildly interesting times, it must be said.