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APC Magazine has a very interesting ‘feature’ today on MIPI, the friendly-sounding but definitely serious enforcement arm of the Australian Record Industry (doesn’t it just make you think it’s the name of a Muppet figure from Sesame Street? Hi, I’m Mippy. Who wants to play a spelling game with me? Can you spell P-I-R-A-C-Y?)

Anyway, name jokes aside, this is a serious report. It deals with the identity of MIPI, copyright enforcement strategy in Australia and likely shifts in that strategy (will we have more criminal enforcement?), and the settlement of the Australian BitTorrent case.

The first part of the report is on the settlement of the ‘landmark’ case against ISP Swiftel in relation to the use of BitTorrent, and in particular, the hosting of BitTorrent hubs. The case came out of raids, in March 2005, on Swiftel’s premises. At the time, MIPI head Michael Speck said:

The BitTorrent/Swiftel case was interesting for a number of reasons.

First would have been an early test of changes to digital copyright law resulting from the FTA with the US.

Second, it was started in the Federal Magistrates’ court, leading to legal skirmishing when the ISP sought to have the case transferred to the Federal Court, on the argument that a case about new, difficult copyright laws should be heard in the more specialist forum with more specialist judges. The copyright owners resisted the transfer, at first successfully, but ultimately unsuccessfully – the case was transferred to the Federal Court. Both I, and David Starkoff, commented on this little legal skirmish at the time.

Third, it was about BitTorrent, and the liability for copyright infringement that might arise from BitTorrent scenarios. BitTorrent is a technology for P2P file distribution – even more distributed, and efficient, than P2P technologies of the Kazaa era. Wikipedia describes it as follows:

BitTorrent provides some interesting issues for copyright infringement and copyright enforcement. As a protocol, BitTorrent has lots of legal uses – it has been used particularly to distribute large files, for example, distributions of Linux. Enforcement in the BitTorrent context has mostly, it seems, been targeted not at the writer of the software (this is a good thing!), but at ‘BitTorrent Hubs’ like Lokitorrent, which ‘clearinghouse for links to pirated copies of movies, TV shows, software and music’. In other words, enforcement has been targeted at those who provide ‘directions’ to the infringing files. According to MIPI, this is what Swiftel were doing. It appears they’ve now admitted it. For quite a good background on the ‘who is getting sued, and how’ issue, this story on CNet is quite good.

It’s interesting to see the case settle. I wonder whether Swiftel ran out of money to fight the case? Did it get no support from other ISPs? Did it consider itself basically stuffed after the Kazaa judgment, where Sharman were held liable for authorising copyright infringement as a result of their activities in supplying file-sharing software and encouraging its use?

Or did MIPI/ARIA just get tired of the legal fight? Were they, perhaps, satisfied with the Kazaa judgment , and the Cooper judgments – both of which deal with secondary liability for copyright infringement, and both of which came out, ultimately, in favour of the music industry plaintiffs? I wonder what implications this has for ISPs more generally?

Apparently, settlement was announced with a joint press statement. The statement is suitably contrite on Swiftel’s part: to quote the statement as quoted in the APC report:

As an aside, I’ve often wondered: in an era of ubiquitous computing, and always-on Internet, where so much is only accessible via the Internet and where children bring home homework that requires the Internet – when is it ‘appropriate’ to disconnect a user from the Internet? How long is it appropriate to disconnect them for? Interesting issues indeed.

The other news in the APC Magazine report is the resignation of MIPI’s relatively recently appointed head. After being headed by Michael Speck for something like 11 years, MIPI acquired new head Michael Kerin in April 2005. Now, he’s gone – 6 months later. Apparently he’s moving to AFACT – the Australian Federation Against Copyright Theft’, the anti-piracy body of the Movie industry, and producer of that woeful set of anti-piracy ads that I criticised a long time ago for being (a) misleading and (b) lame (oh, and I wasn’t the only one who thought so) (and yes, I know the AG launched the campaign).

Hey, maybe Michael Kerin will actually do something about AFACT’s website. It’s been sitting there for over a year now, promising to get more exciting…

Actually, the more interesting news in the story about the resignation is this little tit-bit:

I wonder what the relevant law enforcement authorities think about that? And it’s ominous indeed given the discussion in the AIPJ of the weaknesses, or problems, in the criminal copyright enforcement area. But it’s consistent with the CNET story, linked to above, which also states that the shift is towards criminal cases. Wouldn’t it be interesting if Australia bypassed the ‘civil suits against individuals’ stage, and moved to a criminal enforcement stage? I wonder how consistent that would be with the relatively long-standing policies of the government against over-use of criminal enforcement in the private context?

Read the APC Magazine report. It’s interesting stuff. It raises all kinds of questions in my mind about all kinds of issues. I can’t even begin to answer them. In particular, it really does make me wonder where copyright enforcement is going to go next here in Australia. We live in mildly interesting times, it must be said.