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Courts and treaties decide fate of pirates robbing data banks

Courts and treaties decide fate
of pirates robbing data banks

Behind claims of internet piracy, huge corporations are involved in big money battles, using laws, courts and international treaties to wage a fight to enforce their copyright. Here software engineer Arved von Brasch gives us the rundown on what it’s all about.

Courts and treaties decide what
happens if you rob data bank


If you steal a DVD, the police investigate, and the State prosecutes and determines appropriate punishment.

But what happens if you steal digital data?

That’s the big question behind arcane proceedings occurring in international treaty forums and a court of law in Australia.  The Australian court case could have big ramifications for internet copyright throughout the world.

Hundreds of thousands of young Australians could fall victim to the eventual determinations, because there’s a misapprehension in society that stealing goods made up of electronic data is OK, whereas it would be wrong to steal goods made up of physical particles.

The current arguments are all about who will act as the police in the online world, and whether the presumption of innocence will be continued.

Owners of music and video content believe online piracy is a serious problem, and want better and more draconian ‘policing’ of their rights, to ‘chase’ and ‘catch’ thieves, and then to ‘bar’ them from normal commerce.

The people who own the rights are called ‘copyright holders’. For ease of comprehension, we’ll call them the Corporations. What they want is to make the Internet Service Providers (the ISPs) act as police and jailer. ISPs are utilities/companies and should not be responsible for their customer’s action, in the same way that an electricity company is not responsible for someone using their service to grow illegal drugs. However, Corporations want the ISPs to be responsible for what people do while using their internet service.

The Corporations’ proposed solution is known as ‘graduated response’ (or a ‘three strikes and you’re out’ system).  Similar policies have been made law already in some countries: South Korea, UK, France and NZ…although all with some caveats on the local law, so it’s not quite as simple as it first seems.

It works like this: Each computer connected to the internet has a unique Internet Protocol (IP).  You get your IP from your ISP when you sign up for a service, and it may be renewed every time you connect.  The IP address can be considered a low grade fingerprint, and can be used to identify sites visited.

The Corporations can identify that a particular IP address has allegedly been used to commit piracy…that is, that IP address appears to have downloaded music or a movie illegally.  But the Corporations can’t put a name to the address without the help of the ISP involved, because only the ISP knows which IP belongs to which customer. In most countries, privacy legislation gives ISPs a cover: they are obliged to not reveal the customer information unless forced to do so by judicial order.

However, the laws in South Korea, the UK, France and NZ allow Corporations to force ISPs to warn the owner of the IP address about the alleged crime of piracy, either in real time or shortly afterwards.  After a set number of warnings (‘three strikes’), the ISP can forcibly disconnect the user and no other ISP in the country is allowed to provide internet access to that user for a set time period (6-18 months).

In essence, it is like making electricity providers take responsibility for – and act as police against – people using electricity to grow hydroponic drugs. Under a similar scheme, mobile phone system operators would be responsible for people who planned terrorist offences, or crimes, over their network.

One of the dangers of the model favoured by Corporations is that there is no or little provision for families or households: one person in a house who downloads pirate material could see that entire house disconnected.  Also, there is generally no requirement that a judge must hear a case before someone is cut off the system; equally, avenues for appeal are typically onerous.

In most cases the Corporations don’t even have to prove that the IP address they nominate was actually responsible for the downloading.  In the US, lawsuits brought by the Recording Industry Association of America (RIAA) using similar software to gather IP addresses as will be used by the Corporations, including in Australia, have seen the dead and elderly people clearly falsely flagged.

In only a few of the countries that already have these laws are there provisions which can save you if someone else is stealing your bandwidth (eg, a third party using an inadequately-secured wi-fi network to download Copyrighted works).

While Corporations are often painted as the big, bad villains, that’s not to say that these copyright holders don’t have a valid complaint.  Perhaps one or two people downloading their products causes no harm, but a culture that believes – and acts as if – all electronic media should be free is certainly crippling.

The proof of this is the pornography industry.  Whether you think it is good or not is irrelevant: huge numbers of people pirate pornographic movies.  There is a large market for pornography, but Digital Video Disk (DVD) sales have collapsed in the past two years, and have not been replaced by online sales.

Compared to a few years ago, little new content is being made, to the stage that being an adult porn actor is no longer lucrative enough for someone to make a living.  Ironically, there is less social stigma if you download pornographic films than there is from pirating Hollywood productions.  However, the Corporations are worried that a free-for-all culture will more seriously affect them as more people discover peer-to-peer downloading, whether saucy or serious.

Discussions about these matters have been taking place worldwide, but largely in secret, under the auspices of the Anti-Counterfeiting Trade Agreement (ACTA).  Australia is one of the ‘consulting countries’ to ACTA: our involvement is being run out of the Department of Foreign Affairs and Trade (DFAT).  It has been generally assumed by the Australian electronic/computer/technological community that a mandated graduated response provision would be required for all countries that sign it.  But the article below suggests that is no longer the case.

In Ireland, the equivalent of the Australian Federation Against Copyright Theft (AFACT) successfully sued an ISP there, and was thus able to get graduated response introduced by the back door.  So far it only applies to the one ISP in Ireland, but Corporations are working on suing the other ISPs to expand the precedent.

This is effectively what AFACT are attempting to do in Australia when it sued iiNet.  They’ve had little success lobbying the government, although Communications Minister Senator Conroy has made some sympathetic noises.

If the Corporations get a successful court decision here, then Australia also will have a graduated response policy through the back door.  This is what lies behind AFACT’s appeal (story below), because they decisively lost their first case to iiNet.

– * Arved von Brasch, CLA member and software engineer



Piracy setback for movie giants
Louisa Hearn
Sydney Morning Herald, 7 September 2010

The movie giants appear to have lost key political backing in their international efforts to police illegal downloading through ISPs, throwing the legal spotlight back on to the long running piracy case launched against iiNet in Australia.

Knowledge Ecology International, an organisation that investigates intellectual property rights, claims to have published a leaked version of the most recent draft of an international copyright treaty that does not prescribe a policing role for ISPs in copyright breaches.

This international treaty, called the Anti-counterfeiting Trade Agreement (ACTA), is an international effort to create a legal framework that will guide policy makers tasked with setting national copyright laws.

The film industry has been lobbying hard to make ISPs liable for tracking users illegally downloading copyright content, and implementing a three-strikes policy that cuts off infringers’ internet usage after three warnings.

Although early rumours circulating about the treaty indicated ISPs might be handed responsibility for policing this, the latest leaked draft appears to back away from that scenario.

Rick Shera, a blogger and intellectual property lawyer for Lowndes Jordan in New Zealand, writes on his blog that the draft appears to "remove most, if not all, requirements for treaty countries to impose third party liability on ISPs and other third party providers", leaving only "a relatively benign set of provisions".

"The awaited decision on the iiNet appeal in Australia, heard last month, becomes more important. In the absence of ACTA dictating third party liability principles, iiNet will become the touchstone," he writes.

In the eight-week iiNet trial, an Australian court examined whether or not the ISP authorised customers to download pirated movies and Justice Dennis Cowdroy found in February that the ISP was not liable for the downloading activities of its customers.

Now that finding is being appealed against, the outcome of the case will take on much wider significance, say industry watchers.

Peter Coroneos chief executive of the Internet Industry Association said that, although the treaty would come too late to influence the outcome of the iiNet case, it could affect the outcome of cases launched by the film industry in the future.

He added that if the conditions proposed in the leaked draft treaty prevailed, then the outcome of the iiNet case would be likely to have a significant influence on future Australian piracy cases.

"Company obligations would be defined by the outcome of this case and the subsequent appeal, but the treaty will have more weight in setting up a de facto global standard," he said.

Steve Dalby, chief regulatory officer for iiNet said he had previously received assurances that the new treaty would not imbue ISPs with responsibility for policing the actions of their users with a three-strikes policy.

"This is really a conversation that has being going on around the world in a variety of jurisdictions … but there is no fine detail about how it all might work … we’ve said it just isn’t going to work."

The Australian Federation Against Copyright Theft (AFACT), which launched the court action against iiNet, did not want to comment specifically on the leaked document, but a spokesperson said: "AFACT has always maintained that ISPs have a responsibility to prevent online copyright theft. With the opportunity to carry content comes a responsibility to protect it. ISPs have a duty to ensure that their profits do not come at the expense of the rights of the creative communities."

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