Following intense pressure from the Australian government, ISPs were warned that they had to come up with a solution to online piracy or face a legislative response.
In collaboration with some rightsholders, last month a draft code was tabled by ISPs which centered on a three-strikes style system for dealing with peer-to-peer file-sharers using systems including BitTorrent.
In a response to the code just submitted by the Australasian Music Publishers Association (AMPAL) – which counts EMI Music Publishing, Sony/ATV Music Publishing, Universal Music Publishing and Warner/Chappell Music among its members – the companies accept that the proposals are moving in the right direction but suggest boosting them in a number of ways.
Firstly, in an attempt to plug the so-called ‘incorporation’ loophole, the publishers say that all Internet subscribers should be subjected to the graduated response scheme, not just residential customers. While that suggestion could cause all kinds of problems for businesses and providers of public wi-fi systems, that’s just the tip of the iceberg.
AMPAL says it recognizes that the code requires rightsholders to do their own online monitoring of file-sharers. It’s a practice employed around the world in every jurisdiction where “strikes” systems are in place. However, the publishers would prefer it if the draft code was amped up to the next level.
“The Code does not place a general obligation on ISPs to monitor and detect online copyright infringement,” the publishers write. “AMPAL submits that ideally the Code should include such a duty using ISPs’ monitoring and filtering techniques.”
The publishers don’t elaborate on their demands but even in this form they are troubling to say the least.
While rightsholders currently monitor only file-sharers distributing content without permission, in theory and to meet AMPAL requirements ISPs may have to monitor the activity of all customers. Not only that, the ‘filtering’ aspect would mean that ISPs become much more than mere conduits of information, a real problem for those seeking to avoid being held liable for infringing activity.
But AMPAL’s plans for ISPs go further still. Not only should they be pro-active when it comes to monitoring and warning subscribers, ISPs should also use technology to actively block access to infringing content on other levels.
“The Code does not require ISPs to block access to infringing material. AMPAL submits that ideally the Code should include provisions obliging ISPs to take such action following provision of the relevant information by Rights Holders and/or following discovery of copyright infringing websites by ISPs’ monitoring and filtering techniques,” the publishers write.
Again, AMPAL provides no elaboration, but on face value these suggestions will horrify ISPs. The premise is that after being told by a rightsholder that specific content is infringing, ISPs should use filtering technology to stop its subscribers from sharing that content. Difficult – if not impossible.
Furthermore, ISPs should be both responsive to rightsholder request and pro-active when it comes to the practice of blocking ‘infringing’ websites. Who decides the criteria for such blocking isn’t detailed, but presumably AMPAL feels well placed to do so and that the ISPs should do its bidding.
When it comes to dealing with subscribers, AMPAL is also seeking penalties for those who persistently disregard infringement notices. The current proposals allow rightholders to request the details of errant subscribers after they get caught sharing content three times, smoothing the way for legal action. But AMPAL wants more.
“AMPAL submits that ideally additional options should be available to Rights Holders in the form of sanctions or mitigation procedures to be imposed on Account Holders,” the publishers write.
“Rights Holders are severely limited in the realistic damages that they can recover. Litigation in this area is costly and difficult particularly for the small to medium enterprises that make up a large proportion of all rights holders.”
Describing the draft code as “an important initial step”, AMPAL says that a revised code to incorporate its demands should be implemented in the future.
“Only with a concerted effort by ISPs, Rights Holders and government can the damaging effects of online copyright infringement be addressed,” the trade group concludes.
Finally, in its submission to the draft code the BBC expresses concern that subscribers could use VPN technology to circumvent the whole system.
“The code is ill equipped to deal with consumers who spoof or mask their IP addresses to avoid detection, behaviour that we believe will increase as a result of an introduction of a notice scheme,” the BBC said.