There is always a danger when intermediaries are pressured to act in the interests of copyright owners. There is little oversight, large risks to privacy, and little incentive to refuse in the interests of subscribers. Pressure on intermediaries really alters the copyright balance, making it much easier for copyright owners to attack users, shrinking grey zones and chilling speech, and abrogating the presumption of innocence.
In this environment, it is always reassuring to hear that ISPs will not bow to the pressure that is brought to bear by the copyright industry. The Age is today reporting that BigPond have strongly opposed the pressure from AFACT.
Peter raised some points of oppisition by Austrlaian ISPs against the 3 strikes policy which is being pushed by MIPI and AFACT.
It seems that a formal agreement has stalled. I am still, however, highly concerned by informal agreements where ISPs voluntarily agree to play the role of copyright enforcers on behalf of the copyright industry. In the US, we are now seeing the copyright industry issuing what they call “settlement letters” to ISPs (mainly universities), purporting to identify users who are involved in copyright infringement. In fact, the letters have been shown to be highly inaccurate. The letters threaten the individual identified by the university with the initation of a copyright lawsuit if the user does not settle immediately, through an easy to use settlement gateway (which accepts credit card settlements of between $3000 and $11000 with a minimum of hassle). The process generates significant revenue for the copyright industry, and practically eliminates the cost of bringing lawsuits and proving both infringement and damages. Faced with the prospect of an up-front settlement or an expensive trial process, rational users may often chose to settle, even if they are not legally liable.
I asked Peter Coroneos if, when Australian ISPs are handed a letter purporting to identify a user by ip address who is alleged to have downloaded infringing material, whether they will identify the subscriber or pass on the threat? This process poses significant privacy risks to Australian individuals, and substantially alters the copyright balance. By facilitating this method, the law effectively eliminates any presumption of innocence or requirement for copyright owners to prove their case. I wrote a paper several years ago on the risks to individuals if intermediaries are co-opted into acting on the behalf of copyright owners without proper judicial oversight – simply put, intermediaries have little incentive to look out for the legitimate interests of individual subscribers, and individual subscribers have little standing to object on their own behalf. That paper considered formal pre-trial discovery and anton pillar orders – with recent evidence suggesting that even judicial oversight is somewhat limited in these cases: see Privacy v IP Litigation: preliminary third party discovery on the Internet.
Peter answered that this is an issue which will require a test case to determine. The argument made by copyright owners is that Section 36 of the Copyright Act 1968 (Cth), which provides for secondary liability for authorisation of copyright infringement (for Part III works), is not covered by the safe harbours introduced in 2004. Accordingly, if ISPs are provided with actual knowledge of alleged infringements, and do not act on their Acceptable Use Policies to terminate the users' subscriptions, they will be liable for authorisation of copyright infringement.
The ISPs, on the other hand, argue that their behaviour is caught by the first limb of the safe harbour, Category A activty. This seems to be a straightforward reading of the legislation. The ISPs also note that the obligation to terminate repeat infringers under s 116AH(1) requires proof of infringement, not mere allegations of infringement. The ISPs, therefore, should fit squarely within the safe harbour, even if the copyright interests forward multiple letters alleging infringement.
Peter concluded that the position is too uncertain in Australian copyright law, and will probably require a test case to determine. I asked whether, until the law is clarified, Australian ISPs would refuse to volunteer identifying details of their subscribers purportedly identified by IP address, short of an Anton Pillar Order or subpoena (with the concommitant judicial oversight). Peter reassured me that he believes that Australian ISPs would oppose such attempts by copyright owners… I certainly hope that he's correct.