p2pnet view MPAA:- An industry code of conduct is critical to the future of the Australian digital economy.
So says Hollywood’s AFART, echoing sentiments frequently expressed by the late Dan ‘The Joker’ Glickman on behalf of the MPAA (Motionless Picture Association of America) and regurgitated by the lamescream US media just as though they mean something.
Uttering them this time around with respect to Australia was Hollywood’s “Australasian” spinster-in-chief Adrianne Pecotic (right).
It’s in the interests of ISPs too, she says in Commsday, which goes on >>>
According to Pecotic the proposed code would see content providers undertaking investigations to detect illegal conduct and handing over IP addresses to ISPs. It would force ISPs to send out infringement notices and provide sanctions for repeat offenders.
“If ISPs choose or are required by law to act in partnership with us as content providers, this approach we are talking about will be incredibly effective to migrate people from illegitimate sources,” said Pecotic. “Sending notifications is incredibly effective.”
My gosh! Doesn’t that read incredibly like a clip from the Three Strikes section of the incredibly discredited ACTA agreement, dreamed up by the corporate movie and music industries?
However, Australian ISP iiNet, which fosters the peculiar notion that looking after the people who keep it in business is of primary importance, “will not send out notices of infringement based merely on the accusations of content providers”, says the story, quoting a spokespeson as saying:
“The system of them issuing warnings to us and then us responding to their warnings has been soundly defeated by the courts as an ineffective and inappropriate process.”
iiNet chief Steve Dalby (right) goes even further.
In an open letter, “It is with interest that I notice your headline in … CommsDay (‘AFACT: ISPs would benefit from industry code on copyright infringement’) and couldn’t resist an opportunity to fill in some of the obvious gaps”, he writes, continuing >>>
Unfortunately, I wasn’t in attendance at the conference, but will happily rely on your report of the comments.
The quotes reinforce the position taken by the private investigators in AFACT and MIPI. AFACT’s poor attempts to present itself as the voice of reason are belied by their ongoing negative and unproductive behaviour. This disconnection from reality is not difficult to spot.
During the hearings in October last year, correspondence between the two industry representatives (IIA and AFACT) was tabled as evidence.
This correspondence showed a genuine desire by the IIA to explore the issues presented and an absolute ‘smack-down’ by AFACT in a letter signed by Adrienne Pecotic. AFACT are quite dishonest when they call for cooperation. Their private actions absolutely contradict their public statements. It is in this atmosphere of bad faith and dishonesty that AFACT continue to preach to the world.
We remain committed to working with content owners, and we are proud that we continue to lead the way with numerous content deals for the benefit of our customers – but we prefer to negotiate commercials with content owners directly.
AFACT have made it very clear – their idea of cooperation is for ISPs to disconnect our customers when they demand it. If we don’t do their bidding they’ll tie ISPs up in the courts.
That’s not cooperation, that’s an attempt at coercion and is, therefore, a poor model for a commercial relationship or an industry code of conduct.
At another level, the MIPI representative is reported as “…citing a number of successful overseas initiatives…” If this is not a mistake it could be an attempt to mislead, not that we should be surprised at that.
Sure – there are changes being introduced or debated in other jurisdictions – but guess what? None of them are anything similar to the demands for disconnection put forward by the likes of AFACT in Australia.
Let’s take them one at a time, based on what is publicly available and online.
Australia: AFACT will tell ISPs who to warn and when to disconnect them. ISPs will bear the total cost of the process, including the risk of retaliation by affected customers. No judicial oversight is contemplated. AFACT made it clear in the correspondence tabled in the courts that this position is not negotiable.
France: The Constitutional Court has deemed that access to the internet is the equivalent of access to education and cannot be denied. Only a judge can determine when, or if, a service should be disconnected.
UK: An on again-off again debate has led to an OfCom discussion paper which makes it clear that:
a) Courts are the appropriate bodies to determine whether ISPs should match the identities of customers with IP address details;
b) A government body will be created in OfCom to deal with customer enquiries and appeals, should the scheme come into being;
c) Participants in any future scheme will be required to meet quality certification requirements before acceptance; and
d) That the parties must enter into commercial agreements to determine reasonable levels of notifications and the distribution of costs (including compensation to customers for inaccurate allegations). The costs are to be pre-paid by content owners to ISPs.
Sweden: Court orders can now be obtained to obtain the identities of customers from IP address details, for the purpose of private prosecution by copyright owners;
Ireland: After compromising internal Eircom emails came to light, the parties agreed to a commercial settlement. The only involvement of the courts was to confirm the resulting commercial agreement did not breach privacy laws and was, therefore, legal.
South Korea: New legislation gives the South Korean courts power to impose six months suspension of internet access after due process.
It is interesting then that AFACT and MIPI point to these as examples of the way it should be in Australia. The law in Australia already allows copyright owners to use the courts to firstly, determine the identity of the users of certain IP addresses and, secondly, allows those owners to then prosecute their claims through the courts, as is now the case in the UK, France, Sweden and South Korea.
What are AFACT and MIPI waiting for?
The answer is, of course, that although those other countries may be held up as shining examples of the way forward, those jurisdictions require the copyright owners to actually do something to protect their rights, rather than just make public pronouncements.
This does not fit with AFACT’s view of the world. In that view, ISPs take all the risks, all the costs and AFACT takes all the benefit. (See also our paper on ‘Hollywood Dreams’)
To end on a positive note, “we’ll say it again – we will happily sit down with any and all content owners to discuss ways to make their desirable content available to our customers, legally and commercially”, Dalby stresses, adding:
“We’ll do that individually, or as part of industry initiatives, but that needs to be done in good faith and with a genuine desire for success.”
Sadly, Steve, concepts of “good faith” and a “genuine desire for success” are an anathema to AFACT, and all the other Hollywood ‘trade’ units.
… and identi.ca
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