Australian ISPs have lashed out at attempts made by a US company to cut services to users caught conducting copyright infringing practices across their networks, adding ISPs should not be viewed as “convenient targets” for individual user offences.
Service providers are up in arms following reports of a recent letter from copyright protection agency MediaForce to an Australian ISP, which insisted the provider disconnect users who are committing copyright infringements across their Internet service networks.
The letter’s recipient, which asked to remain unnamed, posted the contents of the document on public broadband forum Web site Whirlpool.
Claiming to have sent the letter on behalf of copyright holder Warner Bros, New York, US-based MediaForce stated that one of the ISP’s users had been caught distributing copyright film material across a peer-to-peer service. MediaForce identified the user’s IP address as well as noted dates and times that downloads of the copyright material occurred.
The company went on to recommend that since the ISP owns the above-mentioned IP address: “We request that you immediately do the following:
1) Disable access to the individual who has engaged in the conduct described above; and
2) Terminate any and all accounts that this individual has through you.”
According to the company’s Web site, MediaForce is an anti-piracy agent which uses its own online tracking agent to detect any illegal transfers of copyright materials across the Internet via peer-to-peer networks such as KaZaA, Aimster, Gnutella and OpenNap
The Australian ISP in question, responding in a written reply to questions, said that such is the confusion over this issue – “We don’t even know if they can sue us”.
“It’s a very prickly issue that even IT lawyers aren’t completely sure about,” the ISP's representative said.
“As a small ISP with limited resources, you don’t want to open yourself up to litigation, but you don’t want to let some big overseas company push you around when they seemingly have no right to.” The representative added that if the company wishes to make a point of law, they should do it through the proper law enforcement agencies.
"I think the question that should be asked is ‘why should we be expected to?'"
MediaForce’s alleged authority in this incident has also left many ISPs debating the jurisdiction a US agency has over Australian-based service providers.
Hitting back at the statements made by MediaForce, Internode managing director and president of the South Australian Internet Association, Simon Hackett, said end-user ISPs often received such e-mails simply because they were soft targets.
“We are convenient to identify - which is completely irrelevant to our being a willing, or even knowing, part of the commission of a crime,” he said. “The ISP is no more culpable for illegally distributed content than the power company, the vendor of the end user’s PC or their software vendors.”
Asked if Internode would carry out the actions recommended by MediaForce, should it ever be accosted by the New York company, Hackett said his team would only go as far as to contact the user who appears to be appropriate to the accusation, and pass on the letter to them for their information. “Whether our end user chooses to respond to the complainant is a matter for them to decide,” he said. “We usually do not directly respond to the originator of any such accusations.”
Hackett said it was highly inappropriate for the ISP to identify the apparent user to the author of a piece of e-mail from the US for several reasons, most of which related to respecting the user’s privacy.
“We comply with all legally binding direction by Australian police authorities to assist them with their inquiries," he said. "That is the one and only vector that we can, or should, be required to respect in terms of digging into the private affairs of our customers. To do anything else would rightfully expose us to legal action from our own customers on the grounds of violating their own privacy without lawful excuse.” Hackett said that trying to stop piracy by sending accusatory messages was "right up there with trying to prevent terrorism by banning toe-nail clippers from carry-on aircraft bags”.
“It might look good on paper, but it’s pretty useless in practice,” he said.
The managing director of West Australian ISP iiNet, Michael Malone, is also adamant that an infringement of copyright material is a matter to be kept between “the copyright owner and the alleged infringer”.
Malone questioned the notion that the ISP was responsible for dealing with the infringement. He said the extent to which an ISP was liable for distributing copyright material over its network was as yet untested.
Using his own company as an example, Malone said iiNet was still in the process of defending itself against a law suit for defamatory material published online by one of its customers and “innocently disseminated” by iiNet.
“The question is whether or not Warner Brothers is willing to engage in the cost of a cross-jurisdictional battle in order to test the law,” he said.
Malone said with the amount of traffic passing through its network, the ISP physically can’t monitor or police what that traffic is. Instead, it relied on customers to abide by the law, setting a clause into its customer usage policy which indemnified iiNet from any claim relating to their use of the Internet. Hackett agreed that ISPs were not “part-time policeman”.
“We are not qualified to judge whether a customer has broken the law, and we don’t attempt to make that judgment,” he said.
Other ISPs said they would only take such measures prescribed by MediaForce if the actions of the third party had been reported as also breaching this ISP-specific acceptable use policy. “If they repeatedly do this then we can cut them off under this policy, but we would not abide by requests or threats from a third party unless compelled to by Australian or International law or Australian regulatory authorities,” OzEmail spokesperson, Stephen Burns, said.
Similarly, Optus spokesperson Melissa Favero said Optus tackled the issue of intellectual and copyright breaches through its Internet Acceptable User Policies and Terms and Conditions clause. The Copyright Amendment (Digital Agenda) Act 1999 also deals with this issue as it concerns the liability of ISPs, she said.
