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In case you hadn’t picked it up on the many places that have reported the news – the European Parliament has voted against a ‘three strikes’ policy which would require ISPs to ‘terminate’ internet access to repeat copyright infringers. Rapporteur Guy Bono commented:

‘The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion.’

Here here. Extended story: IP Watch. According to that story, the Parliament voted generally in favour of the report (report available here), but voted 314 to 297 on amendment 22 to request member states not to authorise shut-off as part of the graduated response to fight copyright violations.

Peter Martin, here. Most interesting about his comments is the fact that music sales are up.

One of the issues doing the rounds right now is whether ISPs should ‘filter’ for copyright-infringing content (however that might be done). One of the many obvious issues with the attempt to do so is encryption. Solution? Ban encrypted P2P traffic, apparently.

I’ve mentioned before (here, here, here) the idea, currently floating around in just about all the Western countries, that ISPs should adopt a ‘three strikes and you’re out’ policy, disconnecting copyright-infringing internet users. The push for such a policy by certain copyright owner organisations at the moment is nothing if not vigorous: and appears to be making some headway: the UK seems to be considering it; France too.

Anyway, I’ve outlined in the past all kinds of things we would want to know before such a policy was adopted: not least of which would be consumer representation in any negotiations (Choice, or the Communications Law Centre, would both be candidates here). Now I’ve found a description of a (characteristically critical) presentation given by Lilian Edwards last week at an LSE conference. Worth a read if you’re interested in these issues, and so is Lilian’s follow-up comment.

This morning, one of the authors of the iPhone paper I mentioned earlier this week defends his views against Gans’ comments. One thing about Dale’s defence struck me as interesting, and that was this:

Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.

Hmmm. Firstly, I’m not sure it’s correct to characterise notification as meaning the ACCC gives ‘permission’. In fact, my reading of the Act suggests that lodging a notification provides automatic immunity from the date it is lodged with the ACCC (or soon after in the case of third line forcing conduct) and remains in force unless revoked by the ACCC.

Secondly, while it is technically true that non-revocation by the ACCC is not a ‘given’, they’re not exactly in the business of revoking these things. The statistics to some extent speak for themselves. According to the ACCC’s 2006-2007 Annual Report, page 92:

1. In 2006-2007, the ACCC received 694 new notifications, and revoked 2 (that’s a revocation rate of 0.3%). 9 were withdrawn by the notifier.
2. In 2006-2006, the ACCC received 1099 new notifications, and revoked NONE (that’s a revocation rate of zero %). 6 were withdrawn by the notifier.

Also, in determining whether a notification should be revoked, the ACCC has to take into account whether the detriment caused by the arrangement outweighs the benefit. The ACCC’s guide to exclusive dealing notifications on page 8 records the ACCC’s view that “[t]he detriment will be more limited when potential buyers of [the iPhone] have alternative sources of supply for [the iPhone] or substitute products.” Surely, except to the most ardent Apple fanboy, there are numerous economic substitutes for the iPhone (as indeed Gans pointed out).

Again, IANACL (I am not a competition lawyer). But I’m not yet convinced of this one.

Update: Gans responds. And the discussion is ongoing over on CoreEcon in the comments to that thread.
Further update: Clapperton is also getting into the discussion.

Australian IT reports today that, despite an ACMA report questioning the use of filters for today’s challenges to child safety online (see this post),

‘The federal Government’s plan to have internet service providers filter pornography and other internet content deemed inappropriate for children is going full-steam ahead. Trials are to be conducted soon in a closed environment in Tasmania.’

‘A closed environment in Tasmania’. Must. Avoid. Obvious. Jokes. At least Brian Harradine would be pleased.

See also ZDNet here.

All over the press today that QUT people Dale Clapperton (of Defending Scoundrels) and Stephen Coroneos have published a paper arguing that a deal that saw the iPhone locked to a single telephone network could breach competition laws.

I’m not a competition lawyer, so I’m not really in a position to assess the validity of the argument from a legal point of view. Nor am I an economist, so I’m not able to tell you whether a deal like the iPhone one would actually pose a danger for competition. But Joshua Gans is, so head on over there for his views. In a word, not impressed. Ouch.

[Image by Hawken King, licensed under CC-BY]

Apropos of a recent post, the latest edition of the Internet Law Bulletin, has an article (or perhaps, more accurately, MIPI Press Release) by Sabine Heindl (General Manager, MIPI) on the issue of suing individuals for downloading or uploading music, and MIPI’s efforts to have ISPs engage in ‘notice and disconnection’ activities. It really doesn’t add anything to the material I explored in my last post, although this paragraph highlights a fact well known to people like me or Alex Malik, perhaps less well known to the general population:

‘The Australian music industry is now in a position to notify ISPs of the IP addresses of copyright infringers, namely those making available copyright-protected music for download on their networks.’

Yes, that’s right. They can see you.

The article pushes the same line we’ve seen in the materials highlighted in my previous post: ‘ISPs should disconnect users’ when they are repeat offenders. What the article doesn’t do is answer all those questions that we still have about any such proposal: (more…)

Here’s the latest activity regarding communications related national security legislation brought to you courtesy of the Senate Bills List dated 15 October…

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The Sydney Morning Herald is reporting the news that Music Industry Piracy Investigations (MIPI), the music industry’s copyright enforcement arm, is threatening that they may have to start suing individuals for copyright infringement, if ISPs don’t do what they wish, and ‘exert more control over their users’. but is this news? And is it likely? I don’t think so. But to explain why, we need some backstory.

[UPDATE]: Today’s AFR has more on MIPI’s proposals for ISP monitoring of copyright infringement: see page 40] (more…)

Further to my previous posts, the Telecommunications (Interception and Access) Amendment Bill 2007 was passed by the Senate on 20 September 2007. It went through without a definition of ‘telecommunications data’. The Democrats and the Greens expressed their concerns about the bill generally and its impact on privacy and the vagueness of the term ‘telecommunications data’ but their suggested amendments were negatived. See Natasha Stott-Despoja’s speech and Kerry Nettle’s speech for details.

I’ve said it again, and again – what is it about internet censorship that leads to the complete departure of reason (and yes, yes, yes, I know, it’s an election year). Sigh grumble grumble.

I nearly choked over my wheaties this morning when I saw this story on the front page of the newspaper, according to which:

INTERNET service providers will be forced to filter web content at the request of parents, under a $189 million Federal Government crackdown on online bad language, pornography and child sex predators.

Let me see, which countries use ISP or country level filtering? China … Saudi Arabia … Thailand … Kazakhstan … Georgia … Iran … Sudan … Malaysia … Tunisia … Uzbekistan… Belarus. Yes, there’s a set of countries I aspire to join.

Now, admittedly, the proposal seems to have ISP level filtering ‘on request’, rather than entirely imposed from above. Unlike the Chinese, Australians will have choice about whether to have their internet service filtered (at least to some extent – there’s plenty of laws in place to require Australian-hosted material to be taken down). The idea seems to be that parents have trouble installing PC-based filters (or at least installing them so their tech-savvy kids can’t get around them) – so ISPs should be forced to do that work for them.

But then that raises interesting issues of cost, doesn’t it? Let us see, what did DCITA itself conclude (note: big pdf) just a couple of years ago?

• Filtering technologies have not developed to the point where they can feasibly filter R-rated content hosted overseas that is not subject to a restricted access system.
• Complex analysis filtering technologies are not practical in a national proxy filtering system. However, due to developments in search algorithms and server power, Uniform Resource Locator (URL) or Internet Protocol (IP) addressed-based filtering does appear technically feasible at the ISP or server level.
• There are a number of practical difficulties in mandating URL/IP based filtering at the ISP level, including accuracy rates and, according to the Internet industry, impact on broadband. Ovum has estimated that URL/IP based filtering would involve implementation costs of approximately $45 million and ongoing costs of more than $33 million per annum. Such costs could significantly impact on the financial viability of smaller ISPs, in particular. Given the limited benefits of an ISP-level filtering system, the costs of a mandated requirement to filter do not appear justified.

So. Show me the report that says something has changed. Oh, no, that’s right, this is another one of those back of the envelope ‘it’s important and it’s an election year’ things. Sigh, grumble, grumble.

And it does seem like a lot of money in order to make it a bit harder for a few kids to access inappropriate material, and to save those kids’ parents the trouble of installing filters on their home computers. cost effective? methinks not. Oh, yes, right – that’s not the issue, it’s an election year.

Following on from Kim’s last post, if there was ever a time when national security and anti- terrorism legislation wasn’t a tech-law issue, that time has passed. The Telecommunications (Interception and Access) Amendment Bill 2007 is currently before a Senate Committee. There are 26 submissions . The industry will have to get its head around the new framework. National Security is now a tech law issue and I think it is going to get complicated.
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And another thing, about the November government draft of a new law for internet censorship (see my previous comments here and Pete Black’s comments here).

One thing that is fundamentally wrong with the government approach is the ‘cover everything, create specific exemptions’ approach. The government proceeds by creating a default position that everyone doing anything online (even vaguely related to commercial life) is covered, and then creates a long list of exemptions so that certain kinds of sites are free from regulation.

Three serious problems with this approach:

1. The obvious problem: new kinds of sites are automatically censored. Since we don’t know what might happen online next, why make the default regulation? Why not single out the specific things you want to cover?
2. The ‘bob each way’ approach: for most exempt categories, the definition states that the site must fit the definition AND ‘comply with other requirements in the regulations’. This would enable the government at any time to impose additional requirements on, say, user-generated sites or search engines – by regulations, which can only be DISALLOWED, not amended, by Parliament. Ick.
3. Lawyers’ paradise. I foresee many arguments by people saying they fit within categories. That’s what always happens when you have a specific list. Again, ick.

Oh, and here’s a question. do you think massive multiplayer online games are covered by this regime?

Someone at Telstra forgot to get their NextG advertisement checked by a copyright lawyer.

You may have seen the ad (it showed last night during Australian Idol, but I’ve seen it before): a good-looking girl having a great time at a live concert holds up her fabulous sexy slimline phone and records what’s going on. She sends it to her home computer, and a whole bunch of the concertgoers follow her home to continue the party at her place. Pan to fabulous large house with seriously rocking party.

What the Telstra people clearly didn’t check is that the Copyright Amendment Bill will make a whole bunch of these activities criminal, with strict liability and a $6,600 fine per offence. Let’s see: (more…)