Pirates Beware: Hollywood Attorneys’ Quest for Illegal Downloaders

Australia’s biggest Internet Service Providers (ISPs), including Telstra, Optus and iiNet are set to join forces to establish the Copyright Notice Scheme Industry Code (“the Code”), which aims to reduce online piracy.

The Code which was prepared at the request of Attorney General George Brandis and Minister for Communications Malcolm Turnbull, seeks to stamp out illegal downloading of TV shows, movies and music and will work on a three strike model, Education, Warning and Final.

The Code will be administered by a panel of five members, including two representatives from the ISP community, two from the rights holder community and one from consumer group Australia Communications Consumer Action Network.

The purpose of the Code is to curb illegal downloading through the issuing of escalating notices where, in addition to the final warning, the infringing internet user’s address is made available to rights holders to enforce their copyright.

At this stage, the Code would only apply to sufficiently large residential fixed internet ISPs, and would not apply to mobile internet users or business subscribers.

Under the Code, if a rights holder believes they have detected illegal downloading of their work and can identify the relevant user’s IP address coming from a particular provider, they can send a standardised copyright notice to the ISP.

The ISP then has to contact the account holder with an email telling them of the alleged infringement, which also includes educational information about copyright infringement, including links to legal sources of content.

If the user’s conduct does not change and they are detected infringing copyright on three separate occasions within 12 months, their IP address will be included on a final notice list which is made available to the rights holder.

The rights holder may then lodge an Application to the Federal Court, requesting the identity and contact details of the subscribers on the list from the ISPs.

If such an application is lodged the ISP must act reasonably to assist and facilitate it, and if successful the ISP must comply with a final court order to disclose the account details to the rights holder.

The rights holder will then be provided with the infringing internet user’s address, where the studio might choose to sue or demand payment for the infringement.

If no final notice is sent to a user within 12 months from the initial education notice, the Code resets and the user’s infringement allegations revert to zero.

In the meantime, consumers can challenge any dispute and claims of infringement, but only after a Final notice has been sent.

In order to challenge a user must provide their written submissions with a fee of $25, which is refunded if the applicant is successful.

The ISPs hope to implement the Code by September 1 2015, with the federal government threatening to implement its own Code if ISPs and rights holders fail to reach an agreement by April 8 2015.

In any event, it is likely rights holders will focus their enforcement efforts on users participating in peer-to-peer file sharing through pages such as the Pirate Bay and other similar torrent sites.

Downloaders need to be aware that under this scheme, it is ultimately the individual and not the ISPs who will be held responsible by rights holders over alleged infringements.

If you seek advice in relation to online copyright infringements, please contact McLaughlins Lawyers Commercial Litigation department for assistance.