Internet service provider iiNet has hit out against what it describes as "stand-over tactics" by content industries and approaches to copyright enforcement that involve ISPs "threatening or disconnecting" customers.
The court action against iiNet was brought by a group of 34 film and television companies.
Attorney-General George Brandis earlier this year told a forum that in the wake of the iiNet trial verdict, which found that the ISP was not responsible for copyright infringement by its customers, the government was looking at ways "to provide a legal incentive for an Internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks".
The High Court's judgement noted that the movie studies that brought the action against the ISP, rather than pursue iiNet customers alleged to have downloaded movies, "seek to fix iiNet with the liability of a secondary infringer in relation to those primary infringements."
The judgement noted that "iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants' films on that customer's computer".
The government's discussion paper canvased the option of expanding authorisation liability, making ISPs potentially responsible for taking action against copyright infringement even in cases where the ISP "does not have a direct power to prevent a person from doing a particular infringing act".
"This proposal to extend authorisation liability is an extraordinary game-changer. It is contrary to the approach taken in both the EU and United States. The Australian tech industry will be placed in a competitive disadvantage with their international competitors," iiNet's response (PDF) to the discussion paper states.
"If the authorisation law is changed as described, Australian ISPs will be forced to terminate service on allegations alone."
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"Given that ‘infringers’ appear to become infringers, purely on the allegation of rights holders, it is to be expected that rights holders will use their highly automated, offshore IP address harvesting systems to generate an avalanche of allegations against Australian IP addresses," the submission by Steve Dalby and Leanne O'Donnell states.
"ISPs will be faced with an influx of possibly millions of allegations coupled with the substantial uncertainty and risk flowing from the proposed change to the authorisation test. In this context, one rational response from ISPs may be to implement their repeat infringer policies and terminate the accounts of the impugned customers.
"The impact of termination of accounts on both households and businesses is considerable. The government’s Discussion Paper doesn’t provide any safeguards for ISPs such as an indemnity, should a customer take action against an ISP after being wrongly accused and punished for an infringement."
'Follow the money'
iiNet backs a 'follow the money' strategy that targets the income of websites linked to copyright infringement. Such an approach was endorsed in a submission by telco industry body Communications Alliance.
"Discussions are underway as to whether a united approach could be adopted by ISPs whereby the industry generally agrees on measures or policies to ensure the relevant websites do not benefit from any of the industry’s advertising revenues," the Comms Alliance submission stated.
However, iiNet parts company with Comms Alliance over a proposal for a system of court-regulated blocking of websites involved in copyright infringement.
"iiNet will not voluntarily enter into a filtering-like scheme where foreign, commercial interests determine which websites are visible to Australians," iiNet's submission states.
"The site-blocking proposal [in the government's discussion paper] does not adequately take into consideration the very real risks of overblocking, the ease of circumvention and the myriad of alternative ways determined infringers can gain access to unauthorised content."
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