Analysis: ISPs play wait and see game after iiTrial

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.