LawFont.com

A few more news stories on ACTA including one from the ABC.

Perhaps more interesting (not for what it says, but how it says it) is DFAT’s latest update on the negotiations.

First, there’s this:

A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist.

That might be convincing, first, if the US hadn’t shown text to a whole bunch of people. Why is it that only US-based companies or industries get a say in what gets put into the treaty? It would also be more comforting if (as might have been the case once upon a time in treaty-making practice) the parties were negotiating at a high level of abstraction. Back then, secrecy might have been more ok, because details could be worked at at a local, ie domestic, negotiation and discussion with affected parties. More recent experience indicates that in this area, DFAT are prepared to negotiate treaties that leave us little flexibility to balance domestic interests or to ensure that Australian interests are protected.

Or there’s this:

The ACTA initiative aims to establish international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of counterfeiting and piracy. In particular, the ACTA is intended to establish, among the signatories, agreed standards for the enforcement of intellectual property rights that address today’s challenges by increasing international cooperation, strengthening the framework of practices that contribute to effective enforcement of intellectual property rights, and strengthening relevant enforcement measures. The intended focus is on counterfeiting and piracy activities that significantly affect commercial interests, rather than on the activities of ordinary citizens.

Now, I don’t know about you, but the way I read that, the treaty is going to be intentionally one-sided: lots of IP-protective stuff, and nothing to balance that out. Now, I’m all for ensuring governments have the freedom to take the steps they think necessary to protect civil liberties, presumption of innocence and all that kind of thing. But unless that’s stated in the text, can we be sure that at some point we won’t be faced with a claim that we’re breaching the treaty by softening its enforcement effects?

Finally, it says that “ACTA is not intended to interfere with a signatory’s ability to respect its citizens’ fundamental rights and civil liberties”. To the extent that it proposes to include material on ISPs, ISP safe harbours (and their limitations) and ‘graduated response’ (ie three strikes type stuff), it’s very hard to see how that’s true.

more analysis later.
updated: judgment now available on AustLII.
Further update: commentary will have to wait until after my classes today. But please consider this an open thread for any discussion!
Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in these judgments.

ZDNet has some interesting discussion of different ISPs’ policies.

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
2. How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ – Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
3. When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ – what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

More thoughts on the law side of things over the fold. (more…)

We’ve been expecting this might happen for a while. Now it has. From the Australian Federation Against Copyright Theft media release:

“Today, seven leading film companies and their affiliates and licensees filed a legal action against iiNet, a major Australian internet service provider. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, the Australian licensee of some of the infringed works. The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.”

In other words, it’s the argument that an ISP is authorising infringement of copyright. Without seeing the statement of claim, can’t say much more, except this: this is the next ‘upping of the ante’: designed, no doubt, to increase the pressure on ISPs and the Internet Industry Association to negotiate on the so-called ‘three strikes’ proposal for a system for terminating internet access of alleged copyright infringers.

Interesting times. (and yes, I’d love more information if anyone has any…).

On Monday Susanne noted that ACMA had released their internet content filtering report. Well, as you can imagine, there’s been some blogospheric and professional reaction:

1. SAGE (the Sysadmin Guild of Australia) has slammed the artificiality of the methodology used (press release, media report);
2. Somebodythinkofthechildren has produced a great summary set of links to other reactions, here (hat tip: Peter Black).

The Internet Industry Association, CHOICE (the Australian Consumers’ Association), the Australian Library and Information Association (ALIA) and Australian Digital Alliance (ADA) have today expressed their concern about the possible contents of the ACTA negotiations that I’ve discussed a few times (most recently here). They have also agreed a set of six principles which, in their view, should guide the Australian approach to the negotiations:

1. Transparency and accountability (all stakeholders should see and comment on text before it is concluded)
2. Presumption of innocence (no enforcement, civil or criminal, without independent findings of infringement)
3. Proportionality (all enforcement measures to be proportionate to the seriousness of any infringement)
4. Consideration of impact on other treaties and laws (no doubling up or inconsistency with Australia’s existing obligations)
5. Avoiding the prescription of surveillance technologies for IP enforcement
6. Safeguards against liability for intermediaries (such as educational
   institutions, libraries and Internet Service Providers)

More detail in the principles document, which can be downloaded from the IIA or ADA.

Press releases:

1. IIA
2. Australian Digital Alliance
3. CHOICE

Note: I am a member of the board of the ADA.

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.

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.

In case you hadn’t picked it up on the many places that have reported the news – the European Parliament has voted against a ‘three strikes’ policy which would require ISPs to ‘terminate’ internet access to repeat copyright infringers. Rapporteur Guy Bono commented:

‘The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion.’

Here here. Extended story: IP Watch. According to that story, the Parliament voted generally in favour of the report (report available here), but voted 314 to 297 on amendment 22 to request member states not to authorise shut-off as part of the graduated response to fight copyright violations.

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.

This morning, one of the authors of the iPhone paper I mentioned earlier this week defends his views against Gans’ comments. One thing about Dale’s defence struck me as interesting, and that was this:

Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.

Hmmm. Firstly, I’m not sure it’s correct to characterise notification as meaning the ACCC gives ‘permission’. In fact, my reading of the Act suggests that lodging a notification provides automatic immunity from the date it is lodged with the ACCC (or soon after in the case of third line forcing conduct) and remains in force unless revoked by the ACCC.

Secondly, while it is technically true that non-revocation by the ACCC is not a ‘given’, they’re not exactly in the business of revoking these things. The statistics to some extent speak for themselves. According to the ACCC’s 2006-2007 Annual Report, page 92:

1. In 2006-2007, the ACCC received 694 new notifications, and revoked 2 (that’s a revocation rate of 0.3%). 9 were withdrawn by the notifier.
2. In 2006-2006, the ACCC received 1099 new notifications, and revoked NONE (that’s a revocation rate of zero %). 6 were withdrawn by the notifier.

Also, in determining whether a notification should be revoked, the ACCC has to take into account whether the detriment caused by the arrangement outweighs the benefit. The ACCC’s guide to exclusive dealing notifications on page 8 records the ACCC’s view that “[t]he detriment will be more limited when potential buyers of [the iPhone] have alternative sources of supply for [the iPhone] or substitute products.” Surely, except to the most ardent Apple fanboy, there are numerous economic substitutes for the iPhone (as indeed Gans pointed out).

Again, IANACL (I am not a competition lawyer). But I’m not yet convinced of this one.

Update: Gans responds. And the discussion is ongoing over on CoreEcon in the comments to that thread.
Further update: Clapperton is also getting into the discussion.