Two events last week showed how the battle against online piracy is intensifying. There is also more bad news from the secret trade talks for the Asia-Pacific region, which is being led by the US and Japan, and which could make illegal downloading a crime.
By later this year, Australia will introduce into law the ‘three strikes’ policy. It is incorporated in a code put together by the Communication Alliance, which was handed over to the Australian Communications and Media Authority (ACMA) for approval.
The code was finalised by Australian ISPs and content owners as associations representing movie and TV studios, recording artists and songwriters, The two parties had been battling over a suitable plan to combat illegal piracy for years. But negotiations stopped because ISPs refused to endorse ‘three strikes’ as it would be an invasion of their customers’ privacy, they didn’t think it was their role to police behavior on their systems, and because they refused to pay the cost for the process.
But the Federal Government got tired of the bickering, and issued a threat to the two parties: come up with a voluntary code, or face the Government coming up with its own laws. The ISPs were on the back foot because they could be stuck with the possibility of a law where they would be held responsible for their customers’ behavior.
According to the code, first an Education warning is sent out that the consumer’s IP has been detected accessing pirated material. Then comes a Warning letter to say court action is a possibility, and then a Final warning. After that the copyright holder initiates action.
Early last week, ‘three strikes’ became a reality in Australia through the Dallas Buyers Club case. A Federal Court judge allowed the movie’s two Hollywood producers the right to gain contact information of alleged online infringers (4,736 of them in this instance), and use the three Education, Warning and Final warnings to embark on court action.
Consumer groups as the Australian Communications Consumer Action Network (ACCAN) and Choice warned that Australians needed to be protected from aggressive and intimidating behavior from copyright owners. Overseas, some have contacted illegal downloaders and demanded a huge penalty to avoid legal action, and then offered a smaller figure if the music/movie fan settled quickly. This is known as “speculative invoicing”. In America, one copyright holder demanded $675,000 from someone who had downloaded 30 songs. ACCAN is demanding that anyone indulging in such behavior be banned from the scheme.
What is also worrying is what kind of criminal penalties could come out of current negotiations for the free trade and investment Trans-Pacific Partnership Agreement (TPP). Those involved are the US, Japan, Australia and nine other Pacific Rim countries.
“The strategy of the US is to expand criminal offences for copyright law and trademark law,” intellectual property expert Matthew Rimmer, an associate professor at the Australian National University in Canberra, told one media outlet. Although the negotiations are under wraps, a draft covering intellectual copyright was leaked and published by WikiLeaks last October.
The scenario is, if you share a pirated movie with ten friends, at what point is it a “commercial activity” (which is obviously already illegal in Australia) and at what point is it just a social excursion?
