ACTA coming a little bit more out of the shadows

Michael Geist has a link to the leaked EU comments on the chapter for third party liability on the internet – being drafted by the USA.

The Guardian has weighed into the debate.

Kim Weatherall has emerged from her self-imposed seclusion to comment here, here and here.

DFAT’s must recent summary and overview of key elements. Anondyne USTR statement.

Irish ISP and 3 strikes

IPKat reports that the case in Eire in which the record companies sued the ISP, Eirecom, has settled after 8 days of the scheduled 4 weeks of trial.

Amongst other details, the ISP adopted a 3 strikes policy and the record companies deployed a service to monitor (entrap?) file”sharers”.

Read more here.

Some other background and 3 other strikes here, here, here and here.

IPRIA, ISPs and (Copryight) authorisation

IPRIA is hosting a free seminar on ISPs liability for authorising copyright infringement.

Impressive range of panellists. Possibly the only hotter topic in copyright is what is a reproduction of a substantial part. Score a CPD point!

5 February 2009 at 5.30 for 6.00pm.

Details via here.

Digital Economy – Future Directions consultation

The convolutedly named The Department of Broadband, Communications and the Digital Economy has issued a consultation paper for industry on the Digital Economy Future Directions.

Apparently, the consultation draft arises from workshops held in August and September 2008.

There is considerable useful detail about the state and composition of the digital economy in Australia and questions on a range of important issues are posed.  In connection with the regulatory framework issues, the following questions are raised:

Should the existing copyright safe harbour scheme for carriage service providers be broadened?  

Does Australia’s copyright law unreasonably inhibit the operation of basic and important internet services? If so, what are the nature of such problems and practical consequences?  How should these be overcome? 

Is there non-copyright legislation that is directly relevant to digital economy businesses that create uncertainty or barriers? 

One might have thought, at a minimum, that the scope of the so-called copyright ‘safe harbors’ should be expanded from the indecipherable ‘carriage service providers’ at least to the extent of ‘service providers’ permitted under the Free Trade Agreement (see art. 17.11.29).  One might also speculate that it would be preferable to adopt a global framework for such service provider liability rather than adopting inconsistent and contradictory regimes for different subject matter such as copyright and defamation etc.

The paper specifically excludes from its scope questions about the National Broadband Network.

The consultation paper is available in pdf or Word format via here.

Better hurry, you have until 11 February 2009 to get your pearls in.

The Internet Wars (copyright campaign) come to ISPs down under

The big movie studios have brought proceedings against iiNet, one of the larger (in a non-Bigpond sort of way) ISPs seeking to impose liability on the ISP for infringing downloading by its subscribers.

The Application is here (pdf) and the Statement of Claim is here (pdf).

Various analyses:

Nic Suzor has a detailed view here

Kim Weatherall here

Australian PC Mag here

The Film Industry outlines its position here

IPRoo carries a quote from the Internet Industry Association’s CEO here.

As you can see from this coverage, this has really set the cat among the pigeons.  The striking thing about this action, however, is that one might have characterised iiNet as a general purpose ISP, not existing just to promote infringing downloads like the Court’s found Mr Cooper’s mp3s4free.com or substantially like Kazaa.

Thus, the distinction propounded by the record companies in Cooper (at [123]) and both questioned and side-stepped by Branson J (at [40]) appears to be very squarely off the table. So, as many of the bloggers note, it is not too much of a stretch to claim that the future of the internet is at stake here.  Will the old Copyright Convergence Group‘s analogy to the postal system – imposing liability only on the person who introduces (posts) the material – be confirmed or will we, through the Courts, turn back into a closed, monitored system?

The ISPs can hardly be surprised:

(a) s 101(1A(c) expressly provides for the development of an industry code to establish norms;

(b) the copyright owners have directly attacked the ISPs in Eire;

(c) the UK government has “brokered” some sort of more “pro-active” role on ISPs too.

No doubt, if the matter goes to trial, we can expect to see a volume of evidence about the volume of iiNet’s P2P traffic vis a vis its other activities and, before then, perhaps some applications for discovery of traffic details.

Given that liability appears to be predicated on authorisation, it will also be particularly interesting to see how the movie producers circumvent the prohibition on intercepting communications over a telecommunications system and, perhaps, (if an ISP is a carriage service provider) the prohibition on use or disclosure of information the contents of any communication carried by a carriage service provider.