[LINK] Graduated Piracy Response Coming To Australia, Or Else

[Paul Brooks]

> What AFACT doesn't seem to want to understand is that copyright is 
> enforceable by the rights holder and NO ONE ELSE. If they want to 
> take legal action against the copyright breaker, then go for it. No 
> one is stopping them from going to the courts and filing charges. But 
> it is NOT the "obligation" of an ISP or a phone company or any other 
> common carrier to police what their customers do on the network. Correct?
>
> Jan

At the risk of injecting facts into the debate, and without supporting the AFACT
position in anyway....

No, not quite correct.

Section 313 of the Telco Act:

*313  Obligations of carriers and carriage service providers*

             (1)  A carrier or carriage service provider must, in connection with:

                     (a)  the operation by the carrier or provider of
telecommunications networks or facilities; or

                     (b)  the supply by the carrier or provider of carriage services;

do the carrier's best or the provider's best to prevent telecommunications networks
and facilities from being used in, or in relation to, the commission of offences
against the laws of the Commonwealth or of the States and Territories.

             (2)  A carriage service intermediary must do the intermediary's best to
prevent telecommunications networks and facilities from being used in, or in relation
to, the commission of offences against the laws of the Commonwealth or of the States
and Territories.

             (3)  A carrier or carriage service provider must, in connection with:

                     (a)  the operation by the carrier or provider of
telecommunications networks or facilities; or

                     (b)  the supply by the carrier or provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories
such help as is reasonably necessary for the following purposes:

                     (c)  enforcing the criminal law and laws imposing pecuniary
penalties;

                     (d)  protecting the public revenue;

                     (e)  safeguarding national security.

Note:          Section 314 deals with the terms and conditions on which such help is
to be provided.

There is more, see
http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/ta1997214/s313.html?stem=0&synonyms=0&query=obligations%20of%20carriers%20and%20carriage%20service%20providers
for the rest.


ISPs are Carriage Service Providers, and do have an obligation to 'do their best' to
prevent their network from being used to commit an offence - by their customers, or by
anybody else. "Do their best" is subject to interpretation, and of course they also
have other obligations, including of preserving their customer's privacy, and
complying with their service contract.

However, it is not correct to say "it is NOT the "obligation" of an ISP or a phone
company or any other common carrier to police what their customers do on the network."

Paul.