Graduated Piracy Response Coming To Australia, Or Else

Under the banner of the Australian Federation Against Copyright Theft, the big Hollywood studios are flexing their muscles down-under. If the latest rhetoric is to be believed, the country's ISPs have less than 48 hours to commit to talks on a graduated response system to tackle illicit downloads. Failure to comply, they warn, will result in yet more legal action of the type being suffered by iiNet.

Last week the Australian Federation Against Copyright Theft (AFACT) showed the country’s Internet service providers that far from giving up in their battle against unauthorized file-sharing, they would in fact be stepping up the pressure.

Although AFACT is still engaged in legal proceedings against ISP iiNet, having lost the latest round of action in a case now destined for the appeal court, the carefully weighed rhetoric coming from the Hollywood-backed group speaks volumes.

“AFACT has always been open to discussions and negotiations with ISPs,” said an AFACT spokesperson last week on the back of news that it has been ‘inviting’ ISPs to join them in ‘negotiations’ about dealing with online piracy.

“This is simply an invitation to ISPs to engage with us to fulfil their obligations.”

Last week Delimiter reported that the letter sent by AFACT to ISPs highlights points from the most recent hearing in the iiNet case that the movie group feels went in their favor.

It now seems clear that despite losing that round AFACT is moving now – before the appeal – to pressure the ISPs into coming on board. So what do they want? According to The Australian, who have seen a copy of a letter sent to ISP Exetel, they want “a system of graduated responses to online piracy.”

But rather than an approaching talks on a mutually beneficial and friendly footing, AFACT has chosen to do so on the back of threats that are so thinly-veiled the ISPs can be in little doubt about what might be coming next.

The ISPs have until this Wednesday to accept AFACT’s invitation to voluntarily join talks or they will face “unspecified action”.

Exetel boss John Linton said that the wording in the letter could not be seen “as anything other than a threat.”

According to a source quoted by The Australian, AFACT will be relying heavily on statements made during the iiNet case by appeal court judge Arthur Emmett in order to generate leverage against the ISPs.

In a nutshell, Emmett suggested that customers should be warned that an infringement has taken place via their account and they should be given a certain time, say 7 days, to respond to the allegation. If no response should arrive then the ISP could suspend the account until one does. During the iiNet case itself, Judge Emmett suggested going even further for repeat infringers.

“Maybe the stage is reached where it’s reasonable to say, ‘Look, you’ve had warning after warning. Maybe you’re doing other lawful things, but if you insist on doing this unlawful activity, we’re going to close you down’.” No surprise then that Hollywood like Emmett’s style.

In their ongoing attempts to meet AFACT somewhere in the middle, during March this year iiNet came up with proposals for dealing with the issue of infringement, outlined in the diagram below.

iNet proposal

“iiNet has developed a model which addresses ISP concerns but one we think remains attractive to all participants, including the sustainable strategy of an impartial referee for the resolution of disputes and the issue of penalties for offenders,” explained iiNet chief Michael Malone at the time. He doesn’t seem to be moving from this stance today.

“The rights holders need to provide cogent and unequivocal evidence, which means a transparent and robust collection process, tested by an independent body, such as the judiciary,” said Malone.

So the question remains – will the ISPs respond to the veiled threats of AFACT and agree to meet, or will they call Hollywood’s bluff and wait for the outcome of the iiNet appeal instead?

One thing is for certain, Exetel boss John Linton says he doesn’t respond to threats and won’t be complying. We should know later this week if others take the same stance.

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