More detail has now emerged on ‘three-strikes’ developments in the UK. ‘Three strikes’ refers to proposals currently doing the rounds – heavily pushed by various IP rights-owning organisations – to have ISPs monitor online copyright infringement (particularly P2P), warn users, and, if infringement persists, impose sanctions such as termination of service. The French have been drafting up such a scheme, it’s being pushed elsewhere (including here in Australia) and yesterday there were two significant developments in the UK:

  1. The UK government announced a voluntary ‘Memorandum of Understanding’ between six UK ISPs and BPI (music industry body) and the Motion Picture Association; and
  2. The UK Department for Business Enterprise and Regulatory Reform launched a consultation on ‘legislative options to address illicit Peer-to-Peer (P2P) File-Sharing.

There is already some online commentary: see Pangloss and the Open Rights Group [update: IAM Blog also has some commentary, as does IP Watch]. Some thoughts of my own over the fold. (more…)

The Times today is reporting that ‘[p]arents whose children download music and films illegally will be blacklisted and have their internet access curbed under government reforms to fight online piracy’. According to the report:

The measures, the first of their kind in the world, will be announced today by Baroness Vadera, who brokered the deal between internet service providers and Ofcom, the telecoms body…Britain’s six biggest service providers – BT, Virgin Media, Orange, Tiscali, BSkyB and Carphone Warehouse – have signed up to the scheme. In return, the Government has abandoned a controversial proposal to disconnect broadband services for users who had been caught out three times.

The scheme will, apparently, involve:

  1. warning letters
  2. sanctions – including “traffic management”, meaning a sudden curtailment of their internet speeds, and “traffic filtering”, a careful monitoring of the media files downloaded to an account to check whether they have paid for them.

The scheme does not, apparently, involve the passing on of personal information – BPI and copyright holders will not be given names.

I’m not sure what to think about that – on the one hand, it does get rid of some of the nastier aspects of some of the proposals that have been floating around (like termination of internet service, blacklisting and people being cut off for 12 months). On the other hand, and subject to seeing the details, it does seem to have all the problems of identifying the culprit, collective punishment, transgression of the presumption of innocence, and the imposition of sanctions without court review (see my previous comments here). It also doesn’t appear to be compulsory (in that not all the ISPs have ‘signed up’). Will await details with interest.

On further thought, I’m less and less comfortable with this. Maybe it’s those words – ‘management’, and ‘filtering’. We are, in effect, talking about the ‘management’ – and curtailing – of a fundamentally important communications medium, for the benefit of a particular industry, and with all the dangers that follow of doing exactly the same thing for other industries and interests. All to be done, it would appear, outside any finding by an independent, disinterested tribunal or court that there has in fact been mass infringement of a kind that would justify such a sanction. Yeah, my gut reaction is I don’t like it. In the end, there are important principles at stake here and they appear to be negotiated away by this deal. And I don’t think this is an end to it. But that’s just my view.

Knowledge Ecology International has published a list of proposals which they say are “the substantive suggestions for provisions of the ACTA that the RIAA [Recording Industry Association of America] sent to the USTR [US Trade Representative] on March 17, 2008″.

The wish list makes for very interesting/scary reading for those interested in what the next generation of bi- or multi-lateral treaties in IP might look like. Of particular interest are the following suggestions relating to secondary liability (liability of intermediaries for copyright infringement): (more…)

Today we had the pleasure of a staff seminar up here at the University of Queensland Law School – by David Lindsay, an old colleague of mine from my melbourne days. David these days is at Monash University Law School.

David’s recently published a book with Hart called International Domain Name Law.

Now, I remember back when I first started teaching ‘cyberlaw’ type subjects at Sydney University back in around 2001-2002, domain names was one of those standard things you did. But people seemed to move on, lose interest; stopped talking about domain names much. But today’s talk was something of a revelation to me: David outlined something of the strange, quasi-common-lawish nature of the domain name decisions, with the gradual development of views on issues of interpretation, the areas of controversy, the splits, the absence of clear principles upfront leading to a gradual ‘feeling around’ – all at internet speed due to the number of decisions being issued. He also revealed some of the more outlandish aspects of this rough-and-ready systems: the application of random bits of national law; the lottery that is panellist appointment. And he elucidated how many of the areas of controversy could be fixed with some clear understanding of the objectives of the system.

It was very clear that david’s really done the hard yards in this book: he really has read the decisions – lots and lots and lots of them – and he’s done the heavy intellectual lifting of trying to make sense of it all. I couldn’t be more enthusiastic in recommending it should you ever need to worry about domain name disputes.

The 2020 Submissions are online – over 8,000 of them. And I’m impressed: the Australian Federation Against Copyright Theft have put a submission in, and there are no prizes for guessing their favourite big picture ideas for making Australia a great place:

We encourage the 2020 Summit to commit to the following measures: – acknowledge the threat posed to creative works in the digital age; – provide for effective, adequately resourced enforcement of copyright laws against copyright crimes; – educate the public about the consequences of copyright theft and inappropriate consumer behaviour – to respect copyright no matter what the ‘capacity’ of the digital device; – regulate ISPs to ensure they respect both the copyright content on, and the terms and conditions of their networks; ensure ISPs work with copyright owners to educate consumers, respond to illegal activities and prevent illegal distribution of copyright content on their networks.

And here’s me thinking the summit was supposed to be a place for generating new and interesting ideas…

Update: oh, look, MIPI too (hat tip: Matthew Rimmer). And look – same ‘idea’:

To address these issues, the Australian music industry, supported by a range of other content owners are proposing a “notice and disconnection” or 3 strikes and out system for persistent illegal file sharers. In short, the proposal seeks to deter IP theft by establishing a streamlined industry mechanism where the IP addresses of users involved in significant copyright infringements form the basis of a graduated process of warning notices, suspension and ultimately disconnection by Australian ISPs. Of course, disconnection will only occur as a last resort.

Ah yes. The three-strikes policy. Just what Australia needs to power into the next few decades. What a wonderful ‘big idea’. Won’t that just empower us all, and make that broad technology work for us.

Peter Martin, here. Most interesting about his comments is the fact that music sales are up.

One of the issues doing the rounds right now is whether ISPs should ‘filter’ for copyright-infringing content (however that might be done). One of the many obvious issues with the attempt to do so is encryption. Solution? Ban encrypted P2P traffic, apparently.

I’ve mentioned before (here, here, here) the idea, currently floating around in just about all the Western countries, that ISPs should adopt a ‘three strikes and you’re out’ policy, disconnecting copyright-infringing internet users. The push for such a policy by certain copyright owner organisations at the moment is nothing if not vigorous: and appears to be making some headway: the UK seems to be considering it; France too.

Anyway, I’ve outlined in the past all kinds of things we would want to know before such a policy was adopted: not least of which would be consumer representation in any negotiations (Choice, or the Communications Law Centre, would both be candidates here). Now I’ve found a description of a (characteristically critical) presentation given by Lilian Edwards last week at an LSE conference. Worth a read if you’re interested in these issues, and so is Lilian’s follow-up comment.

Just a quick note to let people know that the deadline for making submissions to the review of legal deposit requirements in Australia – which I’ve mentioned before – has been extended to Friday 2 May 2008 (it was originally supposed to close in January 2008).

All the info is here. I’d encourage people to give it some thought. Issues raised include:

  1. Should people who publish films, or electronic materials, be required to ‘deposit copies’ so that we can make sure we are creating a record for future generations?
  2. Should we require deposit of electronic copies of printed material (should publishers have to deposit electronic copies of books?). If so, how should these be made available? Should the NLA supply electronic copies to regional libraries to increase access? Or not…?
  3. Should we be ‘depositing’ internet material? How does the role of organisations like the Internet Archive, or the National Libraries ‘Pandora’ project, overlap with/interact with legal deposit?
  4. Anyone who has ever had an interest in the Google book project, or ever looked for a document on the Internet and found it gone, should be interested in these issues.

Update: I am reliably informed that I am utterly nerdy for thinking this might be interesting. Sigh.

Australian IT reports today that, despite an ACMA report questioning the use of filters for today’s challenges to child safety online (see this post),

‘The federal Government’s plan to have internet service providers filter pornography and other internet content deemed inappropriate for children is going full-steam ahead. Trials are to be conducted soon in a closed environment in Tasmania.’

‘A closed environment in Tasmania’. Must. Avoid. Obvious. Jokes. At least Brian Harradine would be pleased.

See also ZDNet here.

You might remember late last year Senator Conroy, Minister for Everything Cool and Funky (otherwise known as Minister for Broadband, Communications and the Digital Economy) coming out with a suggestion that Australian ISPs should start imposing ISP-level filtering of naughty-stuff. A few Australian internet-y types discussed this at the time, notably Pete Black at Freedom to Differ, and Dale Clapperton at Defending Scoundrels.

So it’s interesting that ACMA has released a new report, entitled Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety. And you have to love the conclusion from the Executive Summary:

‘…the report highlights that as users increasingly engage with interactive internet technologies, the online risks have shifted from content risks associated with the use of static content to include communications risks associated with interaction with other users…
…At this time, filtering technologies are regarded as suited to addressing particular static content risks.’

ACMA are of course careful to say that ‘clusters of measures can be more effective in minimising risks than single initiatives’ (translation:if we do lots of stuff, then maybe some of it will work). They also note that the UK ‘CleanFeed’ system, which blocks only 1,500 sites, can be deployed at an ISP level – although it addresses only a very specific (child pornography) issue.

Overall, you would have to say that the report (at least on a brief skim) is not exactly a resounding endorsement for filtering, beyond, perhaps, a blacklist of some very specific sites (and even there there is a lack of enthusiasm). (more…)

Look, ACMA even had a press release.

How very disappointing for me.

Several people have pointed out to me that according to the SMH, like the UK government,

[t]he Rudd Government is considering a three-strikes policy against computer users who download songs illegally.

According to the SMH,

The Government will examine new legislative proposals being unveiled in Britain this week to target people who download films and music illegally. Internet service providers (ISPs) there might be legally required to take action against users who access pirated material.

Communications Minister Stephen Conroy said the Government was aware of the views put by the music industry for a code of conduct for ISPs to address file-sharing by subscribers.

“We will also examine any UK legislation on this issue [including any three-strikes policy] with particular interest,” he said.

Now, admittedly, I’m an academic in Queensland – I’ve got no idea what is going on in Canberra. But it is worth noting that (a) it would be really weird if the Australian government did not ‘observe with interest’ what happens in the UK, (b) it would be equally weird if the Australian government did not ‘consider’ proposals put by industry, and (c) none of this is new – industry (in the form of MIPI most significantly) have been making this argument for some time (here, here.)

So I’m not presently feeling the need to spend a lot of time on this. Let’s just summarise the main problems with this approach, shall we? (more…)

Blogosphere is a-buzz with leaked news that the UK government might be considering requiring ISPs to monitor copyright infringement, and terminate repeat offenders. See Technollama, the IPKat, TechCrunch here, Boing Boing, Techdirt here, and the original Times Online here, . According to the Times:

Users suspected of wrongly downloading films or music will receive a warning e-mail for the first offence, a suspension for the second infringement and the termination of their internet contract if caught a third time, under the most likely option to emerge from discussions about the new law.

There has been a similar push in Australia by MIPI in particular; I’ve elsewhere (here and here) analysed the MIPI proposals and raised a number of questions about them (similar to the questions most of the blogosphere is raising). What I think is interesting about the UK developments is that it illustrates just how global this particular push is – looks like we have a coordinated (and more recently, more concentrated) push going on across a range of jurisdictions for a similar ‘notice and terminate’ kind of system. Here in Australia, though, it would be very ironic to see ‘Mr Broadband’ Kev Rudd legislating to switch off people’s internet contrary to presumptions of innocence and the like.

Frankly, too, it still seems like a proposal that is several years behind the trend of infringement. P2P is so, well, 10 years ago; bittorrent is used for all kinds of things (much more so than Kazaa or the like could ever claim), and the easiest way to ‘share’ copyright material is computer to computer.

Update: Open Rights Group put some of the problems well:

In most families, an internet connection is shared by the entire household – so if Dad gets the connection cut off for sharing movies online, suddenly Mum can’t run her business from home, and the kids can’t get access to the Web to do their homework. The Times estimates that there are 6 million people in the UK who share files illegally on the web. Any serious move towards disconnecting offenders is likely to play havoc with the Government’s ambition to foster an e-enabled society.

What’s more, as soon as law enforcers start snooping for IP addresses to pass on to ISPs for disconnection, hardcore filesharers will simply start using encryption to obfuscate their identities. Then they’ll develop software that makes it easy for non-technical people to do the same. And then industry will be back to square one.

If you are interested in IP you may have noticed, around the traps, references to proposals for a “plurilateral anti-counterfeiting treaty”. The proposal comes out of a small group of countries – Canada, the 27-member state European Union, Japan, Korea, Mexico, New Zealand and Switzerland.

According to an IP Watch story a couple of weeks ago,

negotiations will expand upon the enforcement standards of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and countries would be encouraged to comply with other international IPR agreements. The goal is to set a new, higher benchmark for enforcement that countries can join voluntarily.

Now, the Australian Department of Foreign Affairs and Trade has issued a Discussion Paper on whether Australia should join in negotiations. The discussion paper is available here. Be quick – submissions are due by 3 December. Apparently DFAT are interested in hearing people’s views on:

  1. whether Australia should be part of such negotiations;
  2. whether international standards do need to be heightened in the area, and/or whether standards in Australia need to be heightened
  3. views on the kinds of provisions that should be sought/avoided/etc.

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