Copyright industry opposes ISPs’ proposed regime

Comment Given the reception to Australia’s ISPs’ proposal to trial a copyright infringement regime, you have to wonder if people understand what “proposal” actually means.

The ISPs offered their proposed for discussion at the end of last week, but judging by the reception the proposal has received, everyone seems to think it’s a fait accompli. It’s not: it’s a discussion paper, and while it’s generating buckets of discussion, it’s all at the level of surface froth.

According to a report in The Australian, rights-holder lobby the Australian Content Industry Group is whining that the scheme isn’t “fair and balanced” (without defining its specific complaint), while Foxtel wants offenders’ broadband connections rate-limited (a climb-down from the content industry’s long-standing “cut them off” demand).

Foxtel also accused the ISPs of somehow “violating the spirit” of the closed-door talks between the content industry and telcos that were convened by the Attorney-General. Since nobody except the participants knows the content of those talks, it’s impossible to know what “spirit” has been violated.

Which raises an interesting aspect of the ISPs’ proposal: it may not get off the ground, but since the Communications Alliance has made it clear that the paper is open for discussion, it may help expose more of the debate to the public eye.

The Comms Alliance has based its proposed mechanism on the assumption that most “freetards” are casual and accidental, rather than being hard-core I-don’t-care BitTorrent users.

This is indirectly supported by at least one item of evidence available to the public. According to the Australian Bureau of Statistics, Australia’s 10 million fixed and mobile broadband users downloaded around 8 GB per month, at the end of 2010.

I’m not going to try and disentangle fixed and mobile downloads, nor residential and business users, but even allowing for a ±50 percent error, we can probably agree that most fixed broadband users come nowhere near consuming their monthly allowance.

Given the huge popularity of legal content like the ABC’s iView, and YouTube – which already has a mechanism for dealing with infringing content – the Comms Alliance’s belief that most infringers will stop if they’re asked nicely seems reasonable enough.

The industry doesn't agree. While it's impossible to know which "spirit" it thinks has been violated, it probably wants more punitive measures, at less cost to rights-holders.

The copyright industry is also ignoring a fairly simple legal question: as the law now stands, ISPs would be taking a considerable legal risk if they decided to start cutting users’ connections. Even if they were willing to take a “three strikes” approach, they need legislative support to do so.

If it happens at all, any such legislation will be a long time coming. The federal government has stated – more than once – that it’s going to wait for the outcome of the High Court appeal in the iiNet trial before it gets the ball rolling.

That hearing is listed to begin on November 30 – but parliament has already risen for the year. The House of Representatives is now out of action until next February, and it’s unlikely that the government would see AFACT’s demands as so urgent that it will bump whatever is on the schedule to try and put a “three strikes” regime on the agenda.

Nor would I be confident that any such legislation would have an easy passage.

Without legislation, rights holders have to seek an industry solution, and that takes us back to the ISPs’ proposal.

Rights holders could decide to stay out of the discussion process, choosing instead to carp from the sidelines, but that wouldn’t be a good look. Nor would it be good public relations to put submissions to the Alliance but demand that those submissions be kept private.

But if they put forward public submissions, then people like you and I will get a better understanding of the kinds of things that have so far only been spoken behind closed doors.

In that sense, the ISPs’ proposal is a good idea indeed: it offers the opportunity to flush all the arguments out into the open. ®