[LINK] Music industry backs down on piracy

Jan Whitaker jwhit at janwhitaker.com
Mon Jun 6 16:19:04 AEST 2011


The Age today:

Music and film industries split over pirates

  Asher Moses
  June 6, 2011 - 12:46PM
[other stories at the site: Piracy: are we being conned?
[Music piracy war: are the labels wasting their time?
[Ruling may force ISPs to cut off pirates]

The music industry has backflipped on its long-held demands that 
repeat music pirates be disconnected from the internet as a new UN 
report declares such a policy would be a breach of human rights and 
international law.

But film studios, represented by the Australian Federation Against 
Copyright Theft (AFACT), are still backing the controversial 
measures, arguing protection of intellectual property is a human 
right. It has released research saying film piracy costs the 
Australian economy $1.37 billion a year.

The music and film industries have long pushed ISPs and governments 
in Australia and around the world to implement a "graduated response" 
or "three strikes" scheme that would see people accused of repeatedly 
infringing copyright subjected to penalties including warning notices 
and eventually, disconnection. This process would take place without 
any involvement from the courts.

The film studios sued Australian ISP iiNet in a test case designed to 
force ISPs to implement such a scheme but failed. However, the case 
is still subject to appeals. The government has so far resisted 
stepping in with legislation for a three strikes scheme, saying it 
would prefer the industry and the ISPs to negotiate a solution.

Those negotiations are ongoing but the UN report, which concludes 
that internet access is a human right, will most likely swing the 
advantage back in the direction of ISPs, said copyright law expert 
and senior lecturer at the University of Queensland, Kimberlee Weatherall.

"This should be a wake-up call to government, reminding the 
government of its responsibility to protect freedom of expression and 
prevent private sector actions that significantly threaten that 
freedom," said Weatherall.

The UN report found graduated response schemes may violate the 
International Covenant on Civil and Political Rights and such schemes 
should be repealed in countries that have already adopted them. New 
Zealand, Britain and France have legislated for three strikes, 
causing significant outrage among consumer groups, ISPs and academics.

The report was prepared by the UN's Special Repporteur on the 
promotion and protection of the right to freedom of opinion and 
expression, Frank La Rue.

"The Special Rapporteur considers cutting off users from internet 
access, regardless of the justification provided, including on the 
grounds of violating intellectual property rights law, to be 
disproportionate and thus a violation of article 19, paragraph 3, of 
the International Covenant on Civil and Political Rights," the report reads.

Weatherall agreed with the UN report, saying termination of internet 
access was a "disproportionate response to IP infringement".

Sabiene Heindl, general manager of the music industry's anti-piracy 
arm, Music Industry Piracy Investigations, today said there needed to 
be "mitigation measures" for those engaged in repeated illegal file 
sharing but "such measures would not include termination of internet accounts".

Heindl was also speaking on behalf of the Australian Content Industry 
Group (ACIG), which includes MIPI and the book, computer software and 
video games industries.

This is a significant change in position for the industry. MIPI, and 
its counterpart with the film studios, AFACT, have long pushed for 
termination of accounts of repeat infringers and were strong 
supporters of "safe harbour" provisions in the 2005 US free trade 
agreement which stipulate that ISPs are liable to be sued for damages 
if they do not.

Peter Coroneos, chief executive of the Internet Industry Association, 
confirmed that the film and movie studios had previously pushed ISPs 
for disconnection of accounts to be included as one of the remedies 
of a three strikes/graduated response scheme.

"We note there has been somewhat of a change in sentiment in the 
industry," Coroneos said in a phone interview.

"I believe that the option of disconnecting families from the 
internet is both flawed on a policy level and also a politically 
toxic proposal."

Asked to comment on this backdown Heindl said that while it did not 
think termination was a necessary part of a negotiated agreement with 
ISPs this "doesn't preclude termination remaining within the current 
safe harbour regime which deals with copyright infringement more broadly".

An internet industry source said MIPI and ACIG appeared to be 
distancing themselves from the position held by AFACT after realising 
that it was too extreme.

"Politically no politician is going to go out and start talking about 
disconnecting families from the internet so I think they've actually 
read the political environment quite accurately and therefore they're 
backing away from that," the source said.

"They realise they're not going to be able to negotiate anything 
reasonably with ISPs while termination of customers is on the table."

In response, AFACT said that the UN report had not been officially 
endorsed or adopted by the UN and its recommendations did not bind UN 
member states.

"The film community do not agree that a graduated response scheme is 
a breach of human rights," an AFACT spokeswoman said.

The spokeswoman referenced a recent Wiggins survey which found 62 per 
cent of respondents agreed that it was right to suspend the internet 
conections of persistent online copyright infringers.

AFACT also pointed to a recent court case in Britain where ISPs 
challenged British graduated response laws.

"Justice Parker found that copyright is a fundamental property right 
which must be balanced with other fundamental rights, such as freedom 
of expression," the AFACT spokeswoman said.

Colin Jacobs, chairman of the online users' lobby group Electronic 
Frontiers Australia, said cutting somebody off from the internet was 
an "enormous penalty" and a breach of human rights.

"It diminishes or even removes a person's ability to communicate with 
the world and partake in civil society," he said, adding that only 
courts could decide whether someone had broke the law.

"To any government considering a 'three strikes' law, I would ask - 
whose side are you on? These laws are designed to penalise the 
citizens who voted for you at the behest of a handful of foreign 
companies. Shouldn't your own constituents be given the benefit of 
the doubt rather than have their rights stripped away?"

Nick O'Byrne, general manager of the Australian Independent Record 
Labels Association, questioned how being cut off by a service 
provider as a result of a breach of terms and conditions could 
actually constitute a breach of human rights in a developed nation 
like Australia.

"If you don't pay your usage bill they'll still cut you off, if you 
are consistently and flagrantly infringing copyright they may do the 
same," he said.

Negotiations between ISPs and content owners on an acceptable way to 
reduce internet piracy continue.

Coroneos said ISPs would always be uncomfortable with any solution 
that resulted in their customers being disconnected from the internet 
or having their connection speeds throttled.

"It's one thing if a court determines that you have been engaged in 
illegal downloading ... and you've had the chance to defend yourself 
and legal process has run its course. It's another thing for me to 
allege that you're doing that and have the ISP punish you based on my 
untested allegation," said Coroneos.

Coroneos's view was backed up by the UN report which said that ISPs 
should only be forced to take action "through an order issued by a 
court or a competent body which is independent of any political, 
commercial or other unwarranted influences".

The Australian Recording Industry Association said it was optimistic 
that a workable industry-led solution could be found "which 
encourages good consumer behaviour and ensures artists are fairly 
compensated for their hard work". [READ: Record industry, NOT 
performers; see: Grateful Dead.]

The Communications Minister, Stephen Conroy, and his opposition 
counterpart, Malcolm Turnbull, did not respond to requests for 
comment on the matter.

  This reporter is on Twitter: @ashermoses

This story was found at: 
http://www.theage.com.au/technology/technology-news/music-and-film-industries-split-over-pirates-20110606-1fo8q.html


Melbourne, Victoria, Australia
jwhit at janwhitaker.com
blog: http://janwhitaker.com/jansblog/
business: http://www.janwhitaker.com

Our truest response to the irrationality of the world is to paint or 
sing or write, for only in such response do we find truth.
~Madeline L'Engle, writer

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