Coordinated opposition had defanged the final version of Anti-Counterfeiting Trade Agreement (ACTA), and will continue attacking other supra-national digital enclosures such as the Trans-Pacific Partnership (TPP). Hence powerful copyright advocates including the International Federation for the Phonographic Industry (IFPI) and the International Intellectual Property Alliance (IIPA) have concurrently operated outside such treaty frameworks to pressure individual governments in an ‘especially aggressive’ way to force ISPs to police copyright infringements (Bridy 2010: 2). To date Britain, France, South Korea, and Taiwan, have incorporated various forms of graduated response into their domestic copyright enforcement systems (ibid.). Furthermore, other countries are exploring ‘private ordering’ options to enforce online copyright (Bridy 2010: 11-15; Toner 2011). These range from ‘cooperative relationships’ between major content distributors and broadband providers in which Internet Service Providers (ISPs) suspend repeat infringers’ accounts (in the United States), to ISPs being the ‘sole arbiter of the customer’s innocence or guilt’ terminating accounts without court orders (in Ireland). In Australia, the ISP iiNet after winning a precedent-setting law suit brought against it by an alliance of mainly US content owners proposed a graduated response model in which an ‘independent body’ meeting ‘community standards’ mediates the interests of all parties
(posting by Steve Dalby in 'iiNet vs AFACT Federal court judgment - part 2' 2011 forum). Evidently ACTA at least has convinced many governments, their judiciaries, and technical facilitators that Big Content is boss (see, for example, EMI Records (Ireland) Ltd & Ors v. Eircom Ltd & Anor, ).
Anachronistic Romantic and Modernist arguments spotlighting the struggling lone artist are frequently used to justify the the State’s protection of transnational corporate interests, as demonstrated by the High Court of Ireland’s decision that ISPs must implement the ‘phased disconnection’ method of copyright control (See EMI Records & Ors v. Eircom Ltd., ). The judgement concentrated on the rights of individual creators to ‘keep body and soul together’ by exploiting the ‘fruits of moments of inspiration worked out through weeks of endeavour and representing, sometimes, the distillation of some fundamental experience of life’ (ibid. para. 1). In the internet age these singular geniuses must contend with a medium ‘thickly populated by fraudsters, pornographers of the worst kind and cranks’ (ibid. para. 2). Clearly, the invisible hand of the market cannot control those ‘younger people’ so habituated to downloading that a ‘claim of entitlement seems to have arisen to have what is not theirs for free’ (ibid. para. 3). The libertarian market always requires force to ensure it does not disadvantage the powerful. Yet corporate might coupled with State paternalism has not produced docile acquiescence as the French experience demonstrates.
In May 2009 the French Parliament passed the Création et Internet law requiring ISPs to undertake a ‘graduated response’ or ‘three strikes’ protocol against customers allegedly infringing copyright (Yu 2010).
Just as file-sharing’s technological battlefields continually shift, the law similarly reflects the fluid nature of the ongoing struggle. HADOPI’s six year passage into legislation had propelled ‘intense online collective action by movements endowed with a high level of knowledge and skills’ in the use of ICTs (Breindl & Briattey 2010: 2). The bill already contravened a 2009 European Parliament decision preventing member states from implementing three-strikes on the basis that ‘disconnecting alleged file-sharers based on evidence from anti-piracy lobby groups restricts the rights and freedoms of Internet users’ (Ernesto 2009, np). Intellectual property activists, free software supporters, and consumer rights groups built an ‘authoritative online source of public information,’ deconstructing legal and technical jargon to communicate the law’s essence through ‘telling metaphors’ (ibid. 11). They explained how the ‘digital guillotine’ would produce dramatic consequences for file-sharers—for those who earned their living from internet-based activities account termination would be death (Yu 2010: 1380).
HADOPI ‘spiralled into legislative hell’ as France’s highest legal authority, the Constitutional Council, ruled that the enforced loss of Internet access was unconstitutional as it violated the ‘fundamental tenets of presumption of innocence’ (Breindl & Briattey 2010: 12). Henceforth HADOPI could warn downloaders but not disconnect their internet accounts. Although HADOPI’s second iteration was passed into law in September 2009, its implementation was a slow, ‘serpentine’ process (ibid. 13). Internet security company Trident Media Guard (TMG) was contracted by content owners to detect infringements using network monitoring software. This software becomes another battle field in which hackers discover vulnerabilities and code ways around them, so yet again a social ordering attempt via technology generates more social disorder. TMG would inform copyright owners of the ‘IP address from which the files in question were available, the ISP of the alleged infringer, and the date and time of the alleged infringement,’ and then the rights owners refer each instance to HADOPI (Yu 2010: 1380). HADOPI could disclose an infringer's identity to the ISP but not to rights owners. The ISP must then issue a warning to the customer within 24 hours. As no minimum volume threshold exists, an infringement covers the exchange of even just one file. If three alleged infringements occur within a year HADOPI organises a prosecutor to bring the matter before a judge who, without undertaking any investigation, can ban a person from the internet for up to twelve months, although people may appeal the decision (Anderson 2009d, np; Bridy 2011: 54-55).
What were the effects of these exceptionally harsh laws? In October 2010 a French music industry body claimed that their members were sending around 25,000 music-related copyright infringements notifications to HADOPI each day (Pichevi 2010, np). However the implementation process was ‘plagued’ with ‘incessant failures’ as Hadopi and ISP computer systems had not been interconnected, and uncertainty existed about who would foot the bill (Breindl & Briattey 2010: 12; 'Hadopi? Not Even Scared!' 2010). In this scenario bureaucratic disaster is imminent: information overload, communication breakdowns, and not enough prosecutors and judges to process cases rapidly Meanwhile file-sharing had increased by 3 per cent since HADOPI, researchers from the University of Rennes in Brittany suggested (Anderson 2010, np). Fifty per cent of 2,000 digital music and video online purchasers admitted to illicit downloading. Ironically, by banning people from using the internet for any purpose HADOPI might ‘eliminate 27 percent of all Internet buyers of music and video’ (ibid.). Small activist groups had sabotaged HADOPI by derailing parliamentary debates, influencing parliamentarians’ votes, catapulting ACTA into the news cycle, and building ‘further suspicion over state-led attempts to enforce “graduated response” procedures’ (Breindl & Briattey 2010: 12-13). Is it a coincidence that to date other national jurisdictions have retreated from the ‘three strikes’ model, with Germany, Spain, Sweden, Hong Kong, and New Zealand rejecting similar laws (ibid. 5).
In Australia the graduated response model has not yet found its sea legs. Firstly, the left-wing Labor government continues to be consumed by two contentious plans for internet regulation and modernisation: internet censorship via a mandatory software filter implemented at ISP level, and the National Broadband Network (NBN) (Bambauer 2008; Gerrand 2010).
In Roadshow Films Pty Ltd v iiNet Limited (No. 3) , thirty-four film industry companies represented by the Australian Federation Against Copyright Theft (AFACT) had argued that the ISP iiNet ‘by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users.’
Previously, in a 96-page report entitled Australia's Digital Economy: Future Directions (2009: 20) the Australian government had signalled it would undertake a major review of those regulatory frameworks ‘most pertinent to the digital economy,’ that is, copyright law and convergence. It queried whether existing ‘safe harbour’ provisions in existing copyright law were adequate enough to ‘deter unauthorised instances of copyright infringement,’ singling out ISP’s ‘key role’ within ‘online activities’ (ibid. 21). On 2 March 2011 the Department of Broadband, Communications and the Digital Economy released the final Terms of Reference (TOR) for the Convergence Review in which a committee would assess Australia's communications and media legislation (Convergence Review Terms of Reference 2011). It would then advise the government in early 2012 on potential amendments to ensure that the nation’s regulatory framework was appropriate for the new environment in which media and communications technologies converged.
In anticipation of the global battle opening up its next front on the Australian legislative territory, on 15 March 2011 iiNet released the discussion paper ‘Encouraging legitimate use of Online Content: an iiNet view’ (2011). Central within its schema is the ‘impartial referee’ who will resolve disputes between content owners and consumers, and issue penalties to ‘offenders’ (ibid. 8).
The iiNet court cases also revealed the scope of the ‘sophisticated information’ content owners could now collect via network monitoring software (ibid.). Prior to commencing legal action AFACT failed to make all their information ‘available to iiNet (or anyone else),’ but now the law has determined what is required for the future. As Dalby warned, if content owners ‘want to go after infringers’ they have enough evidence ‘to nail them, according to the courts’ (ibid.). Defending iiNet’s model he asked, ‘So – do you want to be chased by someone that doesn't mind overkill (and makes movies about it), or would you rather have an independent body that has community standards to meet?’
As the legislative apparatus becomes less ambiguous in Australia and jurisdictions around the world, cloaking systems that mask IP addresses such as TOR will likely become more widely used. And so new cycles of ordering/disordering regimes continue throughout the interconnecting layers of informational capitalism.
This is another section of a longer text I am working on.
'All Content Related to Australia' 2011, OpenNet Initiative, http://opennet.net/countries/australia
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