Analysis: ISPs play wait and see game after iiTrial

In the heady days after iiNet won its landmark court battle against a coalition of film and TV studios earlier this month, it would have been easy to assume Australian internet users could say goodbye forever to the creeping paranoia so many have felt after receiving a forwarded copyright infringement notice by email.

After all, so the argument went, other ISPs should now have the legal precedent to follow iiNet and refrain from forwarding the onerous messages to their customers.

"It's the constitution. It's Mabo. It's just ... the vibe," wrote one poster on broadband forum Whirlpool, in a thread which could perhaps be best described as a mass of broadband users dancing on what they believed was the Australian Federation Against Copyright Theft's grave. And even Telstra, which had supported iiNet throughout the trial, welcomed what it said was "legal clarity" about ISPs regarding the case.

Yet three weeks on from the verdict, it appears many ISPs are not too sure that that legal clarity actually exists. Australia's largest ISPs have taken a variety of approaches after the case that indicates they are unsure of how to take the result, or even whether such a result can be taken as graven in stone, given the possibility of an AFACT appeal.

Key to the issue is whether each individual ISP will change its policy on what are called "repeat infringers" -- customers who attract the attention of copyright owners because of ongoing dodgy downloads.

Take Telstra, which still has the lion's share of Australia's broadband market through its BigPond brand. Three weeks after hailing the "legal clarity" that it said the iiNet case brought to the industry, the big T has refused to comment on whether the verdict has changed its repeat infringer policy, which it does not make available publicly, although it's also believed Telstra is holding its cards to its chest because of the possibility of an appeal.

We haven't seen any evidence that Telstra forwards on copyright infringement notices to its customers. But it's hard to know exactly what the telco's policy is towards copyright infringement, because its customer terms and conditions document does not mention the issue, apart from to state that customers may not use broadband services for illegal purposes.

The only other statement the telco makes publicly about copyright infringement is a big fat warning on its site stating customers may not use BigPond to download, copy, share or distribute copyrighted works. But it's hard to know what the telco does about those of its customers who do.

Another telco sitting on the fence following the iiNet trial is Internode.

"An internal review of the case outcome is still in progress, and we await any further potential developments, after which we will decide if there is any need to alter any of our existing policies in this area," says Internode chief executive Patrick Tapper.

Like Telstra, Internode does not forward on copyright infringement notices to its customers. But it's hard to know what it does about repeat infringers, because also like Telstra, Internode maintains a repeat infringer policy, but does not publish it.

Internode's standard form of agreement does go into a lot more detail than Telstra's, however like Telstra's web page warning it mainly warns customers not to breach copyright, but not what action it will take if it busts you doing do.

There are, however, ISPs that are more clear in what action they will take if you infringe copyright using their network.

Appendix H of Optus' internet acceptable use policy -- last updated on 15 January this year -- lays down some pretty steep rules for copyright infringers, although we haven't seen evidence that the ISP forwards on copyright infringement notices to its users. The document states that Commonwealth legislation allows copyright owners (or their agents) to direct Optus to remove copyrighted material from its servers or to prevent users from accessing copyrighted materials.

The ISP clearly states that it may take any steps necessary to ensure compliance with infringement notices, including removing content from its servers, closing or suspending internet accounts, filtering the internet content available to a customer or restricting access to a particular website.

"We may take these steps at any time and without notice to you," the policy states.

An Optus spokesperson last week said the telco considered that its approach to copyright issues was "consistent with existing law and the recent judgement handed down in the iiNet case."

However, like others, the telco also believes the film and television studios and their representative body, the Australian Federation Against Copyright Theft may still appeal the iiNet verdict.

Several weeks ago at the telco's half-yearly financial results briefing, Optus director of Government and Corporate Affairs Maha Krisnapillai said the telco suspected there was a "fair way" still to play in the case in terms of appeals.

At the time Krisnapillai said Optus tried to discourage inappropriate behaviour on the part of its users when appropriate and referred to its fair use policy. But, he added, the telco also wanted "not to tell customers what they can and can't do on the network".

Read on the page 2 for the policies of iiNet, Exetel and TPG...

iiNet chief executive Michael Malone says ISPs are currently existing in a gray area following the verdict, as the industry debates what to do with Communications Minister Stephen Conroy's comment that he wants content providers and ISPs to work out a solution, and AFACT works out whether it will appeal the case.

However, there are ISPs that are clearly not existing in that gray area and have taken a cold, hard stance on copyright infringement. Case number one is TPG.

TPG representatives did not respond to a request for comment last week, and we couldn't find any reference to the ISP's approach to copyrighted material in its terms and conditions, apart from the standard clause that you may not use TPG services for illegal activities.

However, even after the iiNet verdict was handed down, posters claiming to be TPG customers have been claiming on Whirlpool that they have been forwarded infringement notices by the ISP. There is a substantial discussion going on about TPG's behaviour specifically on the broadband forum, although we couldn't find any evidence of a similar discussion on TPG's own forums.

"I got two notices the other week," wrote one user claiming to be a TPG customer on February 14. "Gee, I must be really unlucky then, been with them for 5 days and I got a copyright infringement today," wrote another on February 10.

Speaking about one of its customers on TPG, a poster claimed to be from Gold Coast-based communications integrator Seamless Communications claimed that they knew of a customer who had had his account suspended by TPG.

"Personally, I have gone over the TPG terms and can not find any grounds in their terms to back up this action, but as I said, it happened," they wrote the day after the iiNet verdict.

Another ISP that has made its stance clear is Exetel, although in the opposite direction to TPG.

After the trial verdict, Exetel emailed customers that they will no longer have their internet access temporarily cut off if content providers accuse them of copyright infringement, and they wouldn't have to acknowledge receipt of copyright infringement notices on a web page for the purpose.

However, Exetel will continue to forward the copyright infringement notices to customers.

All in our heads?

Malone says that the issue of repeat copyright infringement came up in the court proceedings, with the court hearing that a number of other major ISPs such as Primus, Netspace and People Telecom do publish their repeat infringer policies on their web sites, including the situations in which the ISPs say they are able to suspend or terminate customer accounts.

He says most of the industry's repeat infringer policies are based on a draft industry code of practice that representative group the Internet Industry Association published several years ago. Calls to update this code of practice in the wake of the iiTrial have been summarily rejected.

All of the contracts that ISPs ink with their customers, he says, have clauses that amount to the fact that they can disconnect customers if things really go south and the customers are breaking the law. "They all have something like that," he says.

However, one thing remains clear after ITNews reviewed several standard forms of agreement and customer contracts over the past week.

Those looking for the exact terms on  which they could be disconnected from their ISP for copyright infringement will likely find little certainty -- even after the iiNet verdict. Even the most precise contracts usually leave much to the ISP's discretion, although some ISPs, like Primus, leave little to the imagination about what action they will take and when.

After all, even iiNet doesn't publish its own repeat infringement policy, although the ISP says the internal document reflects its external policy and customer agreement -- which hasn't changed since the trial, as the company saw the verdict as vindication of its approach.

Malone's vision is one in which the content providers would work with the ISPs to get their content to customers -- legally.

However, until that day arrives, it appears that Australian ISPs and their customers will continue to exist in that gray area he described.