hollywood dreams

hollywood dreams
a ‘three strikes’ policy put to the question
hollywood dreams
contents
Foreword...................................................................................................... 3
Executive Summary. ................................................................................ 4
Introduction................................................................................................. 4
Background.................................................................................................. 5
The rights under threat. ......................................................................... 5
File sharing.................................................................................................. 6
IP addresses................................................................................................. 7
What do the content owners want?................................................. 8
Related implications.............................................................................. 10
What’s good for the goose… ............................................................. 10
Onus of proof reversed........................................................................ 11
Proportionality......................................................................................... 11
Can it be done?....................................................................................... 11
Comments from around the world................................................. 14
NZ. ................................................................................... 14
UK. ................................................................................... 14
Sweden.......................................................................... 14
USA.................................................................................. 15
France............................................................................. 15
Contact........................................................................................................ 16
About iiNet................................................................................................ 16
References................................................................................................ 17
The material contained in this paper may be freely copied and/or reproduced providing any content used is
clearly referenced as being by permission of iiNet Ltd.
2
a ‘three strikes’ policy put to the question
hollywood dreams
foreword
Hollywood Dreams was prepared some time ago, however a decision was taken by iiNet management (during
2009) not to release the paper following commencement of proceedings in the Federal Court.
In light of recent developments in Ireland and the UK, iiNet has decided to release the Hollywood Dreams paper
to bring into the open what iiNet believes to be some major Australian issues surrounding a potential ‘Three
strikes protocol’.
In Ireland, media reports indicate that a private agreement has been made between Eircom (an Irish ISP) and
content owners to implement a ‘Three strikes protocol’. The Irish courts have now examined this agreement and
ruled that it poses no difficulties in respect of that country’s privacy legislation. It is expected that content owners
will now want to extend that protocol (by agreement) to other Irish ISPs. It is not expected to be introduced as
mandatory legislation.
In the UK, a ‘Digital Economy Bill’ also looks set to become law and, although it is touted to force ISPs to
‘cooperate’ with rights holders, it really delivers little more than is already available to rights holders in Australia.
The Bill indicates that:
• Rights holders may apply for a court order to learn a subscriber’s identity to aid investigations (as has been the case in Australia for years);
• An industry code ratified by industry regulator – OFCOM - must first be produced;
• Commercial agreements must be in place between the rights holder and the ISP to determine such things as:
◦◦
Limits applied by the ISP on the number of enquiries per period;
◦◦
Cost recovery arrangements for ISPs from rights holders.
Given that various jurisdictions have different governing legislation and different political agendas, it is not
always possible to make a simple comparison between those jurisdictions.
Clearly this paper indicates that iiNet does not support implementation of a ‘Three strikes protocol’ in Australia.
We do not believe that switching the internet off will have any material impact on the incidence of content
piracy. It is, at best, a clumsy shotgun approach to halting infringements. As Justice Cowdroy has commented,
termination goes well beyond the prevention of copyright infringement and will negatively and materially affect
a broader range of individuals who are not involved in infringements. Termination of internet access is clearly
not provided for under the Copyright Act and the community generally expects that it will not be prevented from
using commercial, educational, communications and entertainment applications enabled by the internet as a
result of unproven allegations of infringement. It follows that if termination is disproportional, ineffective and not
provided for in law, it is largely pointless.
We believe, therefore, that as a matter of common sense, common law and community expectation that a ‘Three
strikes protocol’ is unacceptable and should not be considered in the Australian context. Prosecutors such as
AFACT will continue to say “that’s not good enough” but until rights holders abandon the ‘Charlie Chaplin’ era
business model and embrace digital distribution techniques that exploit the power if the internet (rather than
demanding it be switched off), the gap between ISPs and rights holders will continue to create tension.
3
a ‘three strikes’ policy put to the question
hollywood dreams
executive summary
This is a discussion of the principles behind, and indeed the fundamental flaws with, a ‘three strikes’ policy
proposed by copyright owners. This proposal relates to the policing of internet-based copyright infringement, at a
time when many countries have already rejected similar policies on the grounds that they simply won’t work.
Whilst this is not a legal argument, issues of legality are certainly brought into play when we consider the
implications this proposed policy would have on both the general public, and the internet industry as a whole.
By examining possible outcomes that would result from the implementation of such flawed policy, we believe
that we can clearly and unequivocally discredit its value.
We also rely on the well-known principle of ‘innocent until proven guilty’ (a constitutional right in many
countries).
This is designed to be a discussion piece to encourage some deeper thinking on the issue, as well as an
educational tool for the general public, many of whom are unaware of how the ‘three strikes’ policy would
impact them as an individual.
introduction
In various jurisdictions around the world, copyright owners have been appealing to governments for what
has often been termed a ‘three strikes’ policy. The approach also seems to be part of the secretive Anticounterfeiting Trade Agreement (ACTA) discussions taking place1.
The content owners argue that, following their allegations (by means of notifications to an Internet Service
Provider of a suspect IP Address2), that an ISP should identify the service utilising the IP address at a specified
time. They demand that the ISP should then immediately notify the account holder of the service that an
allegation had been made against them. Furthermore, the content owners believe that after three such
allegations have been made, the ISP should terminate the service without further evidence.
Many in the community accept this process as fair and reasonable. Such opinion is based
on a series of assumptions about the accuracy of the process and an assumed link
between the temporary IP address and a responsible person. This paper
doesn’t attempt to examine the legal aspects of a ‘three strikes’ protocol,
such as whether an ISP is even able to implement such a protocol while
complying with current telecommunications legislation. Its purpose is
to reflect on what practical steps might be required by the Australian
community if such a protocol were ever introduced.
A sort of thought experiment along the lines of “OK, if we introduce
‘three strikes’ – what do we do to make it work” .
1
http://www.itnews.com.au/News/168549,acta-leak-isps-to-be-bound-by-new-rules.aspx
2
An IP address is a temporary identifier used by ISPs to set up an internet session for a customer. It
helps define where, on the internet; a service is located and is used for traffic routing.
4
a ‘three strikes’ policy put to the question
hollywood dreams
background
The problem...
According to copyright owners, in Australia alone, millions3 of pirated copies of copyright works (films, music,
TV etc) are being distributed annually. These works have been digitised (either legitimately or not) and are
thus easily copied from camera to computer or, from computer to computer, either via physical media like
discs, or over the internet using the capability of modern broadband.
This may have been less of a problem when blank DVDs cost almost as much as a recorded one, mobile
phones were only used for making phone calls and 10kg cameras were shoulder mounted. In 2010, however,
technological advances have turned the average pocket or purse into a recording studio.
Production houses suggest that security is now tight, but complaints continue that leaked copies are still making
it into the hands of pirates prior to first screening. Once screened, inferior quality rip-offs are also being filmed
in cinemas by thieves with miniature cameras, which are then rapidly shared via the internet or at dodgy market
stalls, the world over.
Movie studios are estimating Australian annual losses in the hundreds of millions4, due to illegal copying.
Without doubt, most outside the industry agree that piracy must be affecting revenues, although many are
very sceptical about an argument that every pirate copy equates to a lost sale.
This problem faced by content owners is not helped by the fact that, for over 100 years5, we have been treated
to free broadcasts and ever wider choices of, firstly music and later, movies and TV shows. It’s not necessarily
intuitive to many people that a movie which has been freely broadcast to the world should be paid for.
In a world in which manufacturers openly target consumers with devices purposely developed to copy that
‘free’ content, one can understand why many may be confused by (or suspicious of) the conflicting messages
being circulated.
the rights under threat
(or, the list of combatants)
It’s worth considering at least three sets of rights in connection with the ‘three strikes’ idea.
One - Copyright infringement is easy to grasp. Artists, creators, authors have well established rights to the fruits
of their creative labour, or rights to the proceeds of content which they have legitimately purchased. These
rights are generally recognised by civilised jurisdictions, worldwide. The telecommunications industry in Australia
absolutely supports these rights.
3
AFACT claim that in 2005, “there were an estimated 11 million illegal downloads of movies” in Australia alone.” Piracy: The Facts, Copyright or
Copywrong in AFACT, accessed 2 July 2009, from http://www.afact.org.au/factsheets/AFACT_Consumer_Guide_Piracy_The_Facts.pdf
4
AFACT claim that “Film and TV piracy rips more than $230 million out of the Australian economy each year.” Piracy: The Facts, Copyright or Copywrong
in AFACT, accessed 2 July 2009, from http://www.afact.org.au/factsheets/AFACT_Consumer_Guide_Piracy_The_Facts.pdf
5
On Christmas Eve, 1906, Reginald Fessenden used a synchronous rotary-spark transmitter for the first radio program broadcast, from Ocean Bluff-Brant
Rock, Massachusetts. Ships at sea heard a broadcast that included Fessenden playing O Holy Night on the violin and reading a passage from the Bible.
(http://en.wikipedia.org/wiki/Radio)
5
a ‘three strikes’ policy put to the question
hollywood dreams
Two - In Australia, consumers’ rights are also well understood. Legislation and privacy protocols are ‘front of
mind’ for most organisations to the point that some believe privacy provisions sometimes get in the way of an
individual conducting their private affairs. Most of those same individuals also agree that their own rights to
privacy are non-negotiable and that the occasional frustrations of trying to do business on behalf of someone
else, in such an environment, are a reasonable price to pay.
As individuals we all have the right to the presumption of innocence. That is, where a person is accused of an
offence of some sort, then there is a requirement in our Australian legal system that guilt must be proven.
Accusations and allegations by themselves are not sufficient to establish guilt. This seems common sense;
however it is fundamental to our legal system. The telecommunications industry also supports these rights,
without hesitation.
Three - ISPs have the right to conduct their businesses without being required to take on additional
responsibilities outside their role as a common carrier. Just as Australia Post is not held liable for the contents
of every package or mail item passing through the mail system, ISPs and telecommunications carriers have the
right to carry customer traffic without being made accountable for the contents of every digital packet they
deliver. If carriers were responsible for every act conducted using telecommunications, their systems would be
shut down in self-preservation. Where obligations are imposed under Australian law, the telecommunications
industry readily cooperates with authorities.
file sharing
Using the internet in conjunction with freely available file sharing software, internet users are able to share
files saved on their computers. Much of the activity on the internet consists of customers going to websites
and ‘doing their thing’ there. This could be a social networking site or an online banking service, looking up
movie timetables, buying a music track or bidding for something on an online auction site. One person visiting
one website at a time.
With file sharing, the software makes use of location addresses
commonly used for internet applications. These
addresses are referred to as Internet protocol addresses
or just simply;
‘IP addresses’.
The ability to share or distribute files has been made much
easier with the availability of ‘Bit Torrent’ software, developed
specifically for this purpose.
Typically, files obtained by file sharing (using ‘bit torrent’
software) are quite large. Many files are megabytes or
even gigabyte in size. NASA’s excellent website6 distributes
photographs and video clips in this way.
6
http://veimages.gsfc.nasa.gov//7104/world.topo.bathy.200405.3x21600x21600.panels.png.tar.torrent
6
a ‘three strikes’ policy put to the question
hollywood dreams
Time Warner has used a similar approach for movie distribution and has praised the elegance of the software
for just this purpose7.
The efficiency of this software is proving to be just as useful for unauthorised activities as it is for legitimate
distribution. The efficiency of file sharing piracy has also led despairing industry leaders like Sony Chief
Executive, Michael Lynton to reportedly declare, “I’m a guy who sees nothing good having come from the
Internet. Period.”8
Ironically, Sony is also a leading producer of technology designed specifically to record and burn high quality
content to DVD9.
IP addresses
These are a useful part of the systems which make the internet run. With so many computers connected to
the web, it’s important to know how to get stuff from ‘A’ to ‘B’ and where ‘A’ is and where ‘B’ is. The IP addressing
scheme most widely in use in 2010, is version 4 (IPv4)10. It uses a numeric address, written as four numbers
separated by periods. Each number can be zero to 255, a bit like this: 1.160.10.240. That’s a few more than 4
billion possible addresses. Not really enough for the world’s population to have one each.
IP addresses are issued to ISPs who allocate them as needed. Many are shared between users and many
use dynamic allocation, meaning IP addresses change from time to time. This doesn’t create an issue as IP
addresses aren’t allocated to customers like phone numbers. Most customers wouldn’t know the IP address
currently connected to their service. If a customer requires a fixed or ‘static’ IP address, they can arrange for
that to be provided, usually at a price.
IP addresses are readily and frequently shared on networks. A private network in a business or home
environment can easily get by with only one internet connection, which is then accessed
through an in-house network.
Consumer grade DSL routers, retailing for a hundred dollars or so, can
readily share a DSL connection (with a single IP address), between
hundreds of different computers using wireless access. Coffee shops
and fast-food stores routinely provide wireless access for customers using
this method. Over the course of a single day, a wireless router in a CBD café
might share its IP address with hundreds of different laptops or other wireless
devices like Blackberries, iPhones or other smartphone devices.
7
http://www.timewarner.com/corp/newsroom/pr/0,20812,1192450,00.html
8
http://www.p2pnet.net/story/22376
9
http://www.learningcenter.sony.us/assets/itpd/discburners/dvdirect/
10
A new ‘version 6’ is slowly being adopted as the internet is said to be running out of v4 addresses for the number of different locations
on the net. IPv6 could provide 3.4×1038 IP addresses, or more than 600 quintillion IP addresses per square metre of the planet. That’s a
lot.
7
a ‘three strikes’ policy put to the question
hollywood dreams
A business providing internet access for employees may have
thousands of computers ‘behind’ a corporate internet gateway with its
single IP address.
Wireless routers have been very useful in extending the limited numbers of
IP Addresses in an IPv4 world. Sharing a single IP address amongst multiple
users11 has worked well. In addition to allowing access for authorised users,
though, a further problem arises when unauthorised users access the wireless
router and steal internet access.
Modern routers come complete with reasonable quality security software which allows users to log on
if they have the appropriate password. Unfortunately, in an era of plug-and-play technology, many routers
just get plugged in, powered up and allowed to run unsecure. This can mean a few unexpected guests taking
advantage of another’s internet service while they are within radio signal range. From the number of calls12 to
support desks asking for assistance to set up secure wireless routers, it is clear that unauthorised use of private
routers is not uncommon and, by extension, neither is the unauthorised access to IP addresses allocated to
those internet services. iiNet has cooperated with police to investigate fraudulent use of internet access (as a
result of unauthorised wireless access) on a number of occasions.
Investigators could easily uncover IP addresses by use of freely available bit torrent software. It is a feature13
of file sharing software that the locations (IP addresses) of the files being sought (say, the latest movie) are
disclosed by the software while in use. While this may be interesting, there is no way to directly link an IP
address to a specific person for further investigation. Assumptions can be made, but if a proprietor was
running a coffee shop or a small business and providing wireless internet access for customers when their IP
address came up on somebody’s list, they would be at a loss to point to a suspect.
what do the content owners want?
The solution put forward by proponents of ‘three strikes’ is this:
1. They will search the internet for copies of files containing their copyright material. Typically these will be
movies, TV shows or music performances.
2. Where they locate copies of these files being made available for sharing, they will attempt to download
the contents. In the process, they will take note of the IP addresses of the computers providing access to
unauthorised files. (Note that the IP addresses are not of ‘downloaders’ , they are the addresses of the
services where the file is being made available)
3. They will then identify which ISP had been allocated with the specific IP address and notify that ISP that an
infringement has been detected. In this scenario, it is the investigator who has downloaded the file.
11
The 802.11 standard used in most routers today allows up to 254 wireless connections on the same router.
12
iiNet has a daily average of 90 customer calls relating to securing wireless connections - that’s 32,850 every year.
13
http://wiki.theory.org/BitTorrentTrackerProtocol
8
a ‘three strikes’ policy put to the question
hollywood dreams
Content owners have indicated that they:
1. Require the ISP to similarly notify their customers, using the publicly sourced IP address as a means of
identifying the customer.
2. When three such notifications have been forwarded, the content owners demand that the ISP should restrict
or disconnect the service identified by the IP address.
3. Require the ISP to accept liability for:
a. Any costs associated with carrying out the content owner’s demands;
b. Actions taken by users as a consequence of the loss of service (remembering no guilt has been proven).
It is important to note that content owners don’t want to pay any of the costs associated with any of this
prosecution process, going so far as to describe such an idea as a “… burdensome shifting of costs…”14.
There are some significant hurdles in the way of implementing such a plan, however.
1. An IP address does not match to a person - ever. They match to services. Internet services are very often a
shared service in a given premise, like water, power and other services. Disconnecting an internet service will
affect all those using the service. It is unreasonable to assume that the occupants of entire premises should
be punished on the basis of the actions of a single unidentified user.
2. The IP addresses identified by bit torrent software indicate a service where a file is available. The file could
exist, quite legitimately, at that service, although it is obviously unacceptable to advertise its availability for
download, the file isn’t necessarily a pirate copy.
3. Modern internet devices (like wireless routers) can provide wireless access outside the premises - which is
a common occurrence. Disconnecting premises because an unauthorised user gained access and used the
service for further unauthorised purposes is unreasonable.
4. Businesses commonly make free wireless access available either to visitors, employees15, students16 or
customers17. Municipal authorities also often make free wireless access available to city visitors18, as do
sporting venues19. Each service would be provided with a single IP Address, yet content holders demand
that these entire premises would have to be disconnected on the basis that an IP address was identified by
their investigators.
5. There is no ‘cost: benefit’ equation to support such argument because the benefits all accrue to one party
(the rights holder) and the costs all accrue to an unrelated party (the ISP).
6. The process goes against Australian practice by inverting the principle of ‘presumption of innocence’ to a
‘presumption of guilt’.
14
Record Industry of NZ: http://computerworld.co.nz/cw/articles/230209_article.pdf
15
iiNet employees are given subsidised home internet as an employee benefit
16
UWA students are given subsidised internet: http://www.its.uwa.edu.au/student/internet
17
Starbucks offers wireless internet to its customers: http://www.starbucks.com.au/en-AU/_Wireless/
18
City of Perth Heritage Trail: http://heritageperth.com.au/projects/hi-tech-heritage-trail
19
Internode offers internet access at the MCG: http://www.internode.on.net/news/2009/03/130.php
9
a ‘three strikes’ policy put to the question
hollywood dreams
related implications
Currently, law enforcement agencies work in close cooperation with ISPs and other carriers in order to
investigate and prosecute offenders. Where these agencies require information or assistance from ISPs,
they obtain a warrant or court order as required by the applicable legislation. They do not have an ability or
freedom to bypass such provisions.
In the event that Hollywood studios were provided with the ability to bypass Australian laws, many other
entities, whether law enforcement or not, would also argue it was unnecessary for them to meet the
requirements of
the Act.
what’s good for the goose…
Some thought should be given to other scenarios where a person may be offended
by another internet user. Is it reasonable for a similar policy to apply (obliging
ISPs to forward notices and disconnect) when cyber bullying, cyberstalking, defamatory remarks online or harassment by email
are notified by
the offended?
As a further (perhaps more far-fetched) extension of this
approach, just as content owners are able to easily harvest
the IP addresses of internet users, so too are the operators of
any website. These might consider it attractive to be able to
take the IP addresses of any visitor to their website (which is
easily accomplished) and then demand that ISPs forward messages to
the services with which those IP addresses were temporarily associated.
onus of proof reversed
In Australia, as with most civilised democracies, the onus of proof is with the accuser, not the accused. Recently,
New Zealand rejected a similar ‘three strikes’ policy on the basis that the proposed legislation was simply ‘guilt
by accusation’.20
In the three strikes approach (being sought by content owners), it demands that an anonymous IP address
(which might be gathered by an offshore investigation of Australian internet services), is proof of
an offence.
There is no right of appeal, no identification of an offender, no proof of liability and the investigators are
conveniently insulated from redress by the ISPs who are apparently expected to be drafted into the role of
unwilling agents of foreign interests.
It is inappropriate to expect the accused to prove their innocence rather than the more usual obligation on the
accuser to prove guilt beyond reasonable doubt.
20
New Zealand Section 92: http://www.3news.co.nz/Video/Govt-drops-guilt-on-accusation-copyright-law/tabid/423/articleID/96682/Default.
aspx?ArticleID=96682
10
a ‘three strikes’ policy put to the question
hollywood dreams
proportionality
Consider a scenario where a uni student stops every day for a coffee at the coffee shop close to campus. Here she
catches up on emails and browses the net using the café’s wireless internet access. Regrettably, the student also
illegally downloads music from a Lithuanian ‘seed’. Over a month, she downloads four separate tracks, which her
software then shares back into the ‘net, each instance of which is picked up by anti-piracy investigators.
Under the three strikes policy, the coffee shop is identified, blacklisted and the internet access is disconnected.
Not only are the café’s customers affected, but the café owner is now unable to conduct an internet-based
catering and ordering service, on-line banking, (including payroll authorisations), credit card checking, stock
ordering, nor can they make or receive phone calls via their VoIP telephone service.
The business soon fails. All for the sake of four music tracks worth less than $10, pirated by a person who is
totally unrelated to the business.
Most would argue that disconnecting a service is totally disproportionate to unproven claims of piracy, when such
a service is vital to many for much more than occasionally illegal downloading music or films.
Disconnecting an internet service is disconnecting the user from a broad range of legitimate services provided
to both residential and business consumers. These services extend from sites providing medical information,
used by parents to self diagnose family ailments; to an ability to earn an income working from home (with the
promise of ever-more applications and functionality on the national broadband network). An indiscriminate
three strikes policy is clearly unreasonable.
can it be done?
The notion of three strikes appears quite simple at first glance. This is exactly what the proponents of such a
policy seek to promote – the perception of an apparently straightforward and ‘just’ approach. Unfortunately it
can be seen that, once a little thought is applied, a raft of issues surface, requiring more and more policy changes
to the point where the implementation becomes totally impractical. Superficially, it seems a straightforward
response to an open-and-shut case of infringement. But, this is not the case.
Let us consider other issues.
1. An IP address is not a person. The foreign investigators hired by offshore content owners have only an IP
address but still make an impossible leap to ‘a person’(they would say ‘an identified customer’) on the basis
that internet services have IP addresses and internet services also have account holders. Therefore, they
argue, an IP address is the same as an account holder.
Account holders are people or legal entities, aren’t they?
The answer to this is ‘maybe’. There is no obligation on ISPs to formally identify the people who subscribe
to their services. It may be good business practice to require real names, but subscribers routinely
subscribe via internet ‘self-service’ portals, never once speaking to a human21, so could easily subscribe
using something less than a ‘legal’ name.
Unlike banks, ISPs are not required to obtain anything like 100 points of identification in order to activate a
21
On average, there are 2983 unassisted customer sign-ups a month for iiNet alone.
11
a ‘three strikes’ policy put to the question
hollywood dreams
new account. Given this approach, Joe Citizen may create an internet account in his own name, his wife’s,
or even in a fictitious name or an unincorporated business, a club or, a favourite character or some code
that makes sense to him.
As long as the service is delivered and paid for, the ISP is unlikely to be concerned that an account is held
by ‘The French Patisserie’ instead of the more accurate, but less evocative, Victor Ng22. It may be possible to
track an IP address to a service, we may even be able to link the service to an account name, but the name
isn’t necessarily a person. That would take further delving and maybe further assumptions would need to
be made.
So an IP address isn’t necessarily going to lead to a person in a single step.
2. But, let’s ignore all that and press on with the issues – let us assume Victor sets up the patisserie’s service in
his name and is the only user of that service. Further, when notified of allegations of infringements,
Victor puts his hand on his heart, hangs his head and says “Yes, It was me. I should be
punished.”
With that admission; and an apparently accurate identification of the perpetrator,
the service is disconnected in line with the three strikes policy.
Later that day, Victor regrets his admission, goes to the nearest coffee shop
and uses their free wireless connection to log on to the internet portal of a
selected ISP (maybe the same one that disconnected him earlier that day).
He signs up for a new account. To be safe, he uses his middle name (Hugo),
rather than his first name, to sign up.
He may have had a brother (Jules Verne Ng, also a pastry cook) who lived next
door. Jules could have said, “Don’t worry about it, Victor. You pay me half and you
can share my wireless connection”. Either way Victor is back on line and the three
strikes initiated disconnection is ineffective.
So – how do we make the disconnection effective? How do we make the
prescribed punishment stick? It seems pointless to insist on the implementation of a
new regime, with its attendant costs, if it achieves nothing.
Disconnecting the service won’t stop the individual from obtaining internet access unless the person
himself can be banned.
22
This is a fictitious example, our apologies to any real Victor Ng who owns a ‘French Patisserie’
12
a ‘three strikes’ policy put to the question
hollywood dreams
Individuals do not have to personally identify themselves when they connect to the net. Usernames don’t
always match a person’s identity and passwords are commonly shared in households and many small
businesses. If Victor is an infringer, then the network needs some way to identify him and ban him at the
network level – if a three strikes policy really is considered an appropriate response.
3. Apparently, the internet would need to be revised, re-invented, re-built, and re-arranged. It just doesn’t
work in a way that suits content owners23. Instead of allowing folks to remain anonymous and privately
log onto the net, it looks like it should be scrapped and re-built with a pre-requisite personal identification,
verified by a bank-equivalent identity check and made mandatory for all subscribers. It is possible that IPv6
could easily provide every person with their own dedicated IP Address. This could be embedded in a chip,
implanted at birth and then devices capable of logging on to the net would need to pick up the identifying
IPv6 address from the chip before establishing a connection.
It wouldn’t matter whether Victor was at home or at Jules’ house or at the coffee shop, he’ll be identified and
tracked. He won’t be anonymous, he’ll be accurately identified.
Now, let’s assume that we have a fool -proof way of tracking Victor and his infringing internet habits. After three
warnings from the content owners (delivered by his ISP), Victor gets black-listed. His service is disconnected and
the ISP forwards the IPv6 IP address to the Department of Public Safety blacklist where it is available for all ISPs
to see.
So – it could be done in a simple, cheap, pointless, easily by-passed way, or, it could be done in a very expensive,
disruptive, extremely invasive, heavy-handed, draconian way, with only slightly more chance of being effective.
23
”The Internet isn’t free. It just has an economy that makes no sense to capitalism.”
Brad Shapcott, Rule $19.99 of Usenet Rules.
13
a ‘three strikes’ policy put to the question
hollywood dreams
comments from around the world
New Zealand
”In the U.S., it was assumed that repeat infringers would be people who are tried in the court of law. And in New
Zealand, though similar language was transposed, that was not the way it was read. The outcry has been so great
that the New Zealand government has said, ‘Look, we’re not going to enforce this, so we’re going to go back and
rewrite the law.”
Danny O’Brien, Electronic Frontier Foundation
“Section 92A to be scrapped
Prime Minister John Key has announced the government will throw out the controversial Section 92A of the
Copyright Amendment (New Technologies) Act and start again.
... S92 - which requires ISPs to have a code of practice to disconnect “repeat” copyright infringers - was due to go
into force at the end of last month, but at the last minute was suspended by Prime Minister John Key…”
Chris Keall, The National Business Review
United Kingdom
“Internet service providers will not be forced to disconnect users who repeatedly flout the law by illegally sharing
music and video files, The Times has learnt.
...[UK IP Minister David Lammy], who has begun a big consultation entitled Developing a Copyright Agenda for
the 21st Century, said that there was a big difference between organised counterfeiting gangs and “younger
people not quite buying into the system”. He said: “We can’t have a system where we’re talking about arresting
teenagers in their bedrooms. People can rent a room in an hotel and leave with a bar of soap - there’s a big
difference between leaving with a bar of soap and leaving with the television.”
Patrick Foster, Times Online
Sweden
“Internet traffic in Sweden has plummeted after a tough new anti-piracy law was enacted in the country earlier
this week, potentially casting interesting new light on the extent to which illegal file-sharing occurs.
The new law makes copyright holders such as record and entertainment companies to go through the courts to
determine the identities of those suspected of piracy, via their IP addresses.”
Phil Muncaster, IT News
14
a ‘three strikes’ policy put to the question
hollywood dreams
United States of America
“The basics are simple: get caught three times sharing files illegally, and your Internet access gets cut off.
But in a day and age when Internet access is almost as essential as a cell phone or electricity, should the
music industry or Internet service providers [ISPs] have the power to determine who can and can’t get online,
particularly without criminal charges being filed?
Details are hard to come by, and the ISPs aren’t talking, but the ultimate punishment for repeat infringers who
ignore warnings might be termination of Internet access. Internet speed could be slowed for those who ignore
warnings but haven’t quite reached termination level.”
Liza Porteus Viana, FoxNews.com
France
“The Council wrote that the law would impose punishment equivalent to a criminal sanction outside of a judicial
process and without the presumption of innocence. It said, “whereas under section nine of the Declaration
of 1789, every man is presumed innocent until he has been proven guilty, it follows that in principle the
legislature does not establish a presumption of guilt in criminal matters.” The Council further made clear that the
presumption of innocence applies “to any sanction in the nature of punishment, even if the legislature has left
the decision to an authority that is nonjudicial in nature.”
Egan Orion, The Inquirer
“The Constitutional Council ruled that “free access to public communication services on line” was a human right,
and that only a judge should have the power to strike an individual from the Internet.
Council members, who include former French presidents, based their ruling on the preamble to the French
constitution, which lists freedom of communication and expression as a basic human right. “
J.Le Masurier, France24.com
“PARIS — The highest constitutional body in France on Wednesday defanged the government’s plan to cut off the
Internet connections of digital pirates, saying the authorities had no right to do so without obtaining
court approval.
The council rejected the core portion of the measure, under which a newly created agency, acting on the
recommendations of copyright owners, would have been able to order Internet service providers to shut down
the accounts of copyright cheats who ignored two warnings to stop.
The council said the proposal was contrary to French constitutional principles, like the presumption of innocence
and freedom of speech. The latter right “implies today, considering the development of the Internet, and its
importance for the participation in democratic life and the expression of ideas and opinions, the online public’s
freedom to access these communication services,” the Council said.”
Eric Pfanner, The New York Times
15
a ‘three strikes’ policy put to the question
hollywood dreams
contact
Steve Dalby
iiNet Chief Regulatory Officer
p: +61 8 6263 3812
e: [email protected]
Copies available from:
[email protected]
http://www.iinet.net.au/press/releases/20100421-hollywood-dreams.pdf
about iiNet
iiNet was established in 1993 and listed on the ASX in 1999, growing from a small Perth business into the third
largest Internet Service Provider in Australia. The company now supports around 900,000 broadband, telephony
and dialup services nationwide, with revenues of over $450m, and proudly employs over 1400 people in Perth,
Sydney, Melbourne, Auckland and Cape Town.
iiNet’s goal is to lead the market with the best internet access products and then differentiate with genuine, plain
speaking customer service. The company has its own high speed ADSL2+ network reaching around 4 million
households across Australia; the largest Voice over IP network in the country; and is delighted to have led yet
again with BoB™, winning 2009’s Product category at the Western Australian Technology and Telecommunications
Awards.
www.iinet.net.au
16
a ‘three strikes’ policy put to the question
hollywood dreams
references
Brett Winterford, 2010, ‘ACTA leak: IPSs to be bound by new rules’, in itnews: FOR AUSTRALIAN BUSINESS,
accessed 2 March 2010, from http://www.itnews.com.au/News/168549,acta-leak-isps-to-be-bound-by-newrules.aspx
The Australian Federation Against Copyright Theft, 2008, ‘Piracy: The Facts, Copyright or Copywrong’ in AFACT,
accessed 2 July 2009, from http://www.afact.org.au/factsheets/AFACT_Consumer_Guide_Piracy_The_Facts.pdf
Wikipedia, 2009, ‘Radio’, in Wikipedia - The Free Encyclopedia, accessed 2 July 2009,
from http://en.wikipedia.org/wiki/Radio
NASA, 2008, ‘January, Blue Marble Next Generation w/ Topography and Bathymetry’, in Visible Earth: A cataclog
of NASA images and animations of our home planet, accessed 3 July 2009,
from http://veimages.gsfc.nasa.gov//7104/world.topo.bathy.200405.3x21600x21600.panels.png.tar.torrent
TimeWarner, 2006, ‘Warner Bros. Home Entertainment Group Announces Revolutionary Deal to Publish Legal
Film and TV Content Using the BitTorrent Platform’, in TimeWarner Newsroom, accessed 2 July 2009,
from http://www.timewarner.com/corp/newsroom/pr/0,20812,1192450,00.html
P2PNET.Net, 2009, ‘Sony boss Michael Lynton, deconstructed’, in P2PNET.Net: Movies, accessed 3 July 2009, from
http://www.p2pnet.net/story/22376
Sony, 2009, ‘Multi-Function DVD Recorder’, in Sony Learning Center, accessed 5 July 2009,
from http://www.learningcenter.sony.us/assets/itpd/discburners/dvdirect/
Wikipedia, 2009, ‘BitTorrent Tracker Protocol’, in Wiki Theory.org, accessed 3 July 2009,
from http://wiki.theory.org/BitTorrentTrackerProtocol
RIANZ CEO Campbell Smith, 2009, ‘RIANZ comments on Telecommunications Carriers’ Forum’s Internet Service
Provider Draft Copyright Code of Practice’, in Computerworld.co.nz, accessed 3 July 2009,
from http://computerworld.co.nz/cw/articles/230209_article.pdf
17
a ‘three strikes’ policy put to the question
hollywood dreams
iiNet LTD., 2008, ‘Benefits of working with iiNet’, in iiNet: Careers, accessed 5 July2009,
from http://www.iinet.net.au/careers/why-iinet.html
University of Western Australia, 2009, ‘Student Internet and Network Access’, in Information Technology
Services, accessed 3 July 2009, from http://www.its.uwa.edu.au/student/internet
Starbucks Coffee Company Australia, 2009, ‘iiNet Wi-Fi now available at Starbucks!’, in High Speed Wireless
INternet Access, accessed 3 July 2009, from http://www.starbucks.com.au/en-AU/_Wireless/
City of Perth, 2009, ‘High-Tech Heritage Trail’, in Heritage Trail, accessed 3 July 2009,
from http://heritageperth.com.au/projects/hi-tech-heritage-trail
Internode, 2009, ‘Free Internode WiFi now available at the MCG’, in News and Media, accessed 4 July 2009,
from http://www.internode.on.net/news/2009/03/130.php
3News, 2009, ‘Govt drops ‘guilt on accusation’ copyright law’, in 3News: National, accessed 8 July 2009,
from http://www.3news.co.nz/Video/Govt-drops-guilt-on-accusation-copyright-law/tabid/423/
articleID/96682/Default.aspx?ArticleID=96682
Brad Shapcott, 1994, ‘Rule $19.99 of Usenet Rules’, in Net.Legends.FAQ (Noticeable Phenomena Of UseNet) Part
2/4 , accessed 14 July 2009, from http://www.linux.it/~md/usenet/legends2.html
Marisa Taylor, 2009, ‘New Zealand Reconsiders Three-Strikes Rule on Internet Use’, in The Wall Street Journal,
Digits: Technology News and Insights, accessed 4 July 2009,
from http://blogs.wsj.com/digits/2009/03/26/new-zealand-reconsiders-three-strikes-rule-on-internet-use/
Chris Keall, ‘Section 92A to be scrapped’, in The National Business Review - New Zealand, accessed 4 July 2009,
from http://www.nbr.co.nz/article/section-92a-be-scrapped-89121
Patrick Foster, ‘Music pirates will not be disconnected from the internet’, in TimesOnline, accessed 14 July 2009,
from http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article5586761.ece
18
a ‘three strikes’ policy put to the question
hollywood dreams
Phil Muncaster, ‘Swedish net traffic halves after new law’, in IT News, accessed 4 July 2009,
from http://www.itnews.com.au/News/100370,swedish-net-traffic-halves-after-new-law.aspx
Liza Porteus Viana, 2009, ‘Three Strikes and You’re Offline: Music Industry, ISPs May Cut Internet Access for FileSharers’, in FoxNews.com: Tech Tuesday, accessed 4 July 2009,
from http://www.foxnews.com/story/0,2933,510283,00.html
Egan Orion, 2009, ‘French ‘three-strikes’ law struck down’, in The Inquirer: News, reviews, facts and friction,
accessed 8 July 2009, from http://www.theinquirer.net/inquirer/news/1271174/french-strikes-law-struck
J.Le Masurier, 2009, ‘Top legal body strikes down anti-piracy law’, in France24.com, accessed 4 July 2009,
from http://www.france24.com/en/20090610-top-legal-body-strikes-down-anti-piracy-law-hadopiconstitutional-council-internet-france
Eric Pfanner, 2009, ‘French Council Defangs Plan to Crack Down on Internet Piracy’, in The New York Times:
Internet, accessed 14 July 2009, from http://www.nytimes.com/2009/06/11/technology/internet/11net.html
19
a ‘three strikes’ policy put to the question