Digital Storm On The Horizon

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Copyright Law Review Paper delves Into Cloud

The Australian Law Reform Commission's (ALRC) newly released Copyright Act review consultation paper has raised concerns that Australian copyright laws might be stunting the country's cloud market, directly making reference to the Optus TV Now court case.

In the paper, "Copyright and the Digital Economy", the ALRC is looking at whether new exceptions to the Copyright Act should be added, since we are well and truly into the digital age.

"The questions we are asking in this inquiry go to whether our current copyright laws are properly aiding the development of opportunities for Australian creators and not unduly hindering the development of new business models, while at the same time ensuring appropriate protection for copyright," the ALRC commissioner for the copyright inquiry, professor Jill McKeough, said in a statement. "At the same time, the expectations of a global community to access and use material for a whole range of creative, community, educative and commercial purposes also needs to be considered."

The dynamic tech sector has thrown a few curve balls at Australia's seemingly outdated copyright laws, including how users of cloud computing can infringe on copyrighted materials.

Launched in 2011, Optus TV Now has since been pulled by Optus after it lost a Federal Court battle with the Australian Football League (AFL), the National Rugby League (NRL) and Telstra. Optus is looking to appeal the case to the High Court of Australia.

Optus TV Now allowed customers to record in the cloud and playback free-to-air TV content on their smartphones with minimum delay. This was perceived by the football bodies as being a copyright infringement, especially due to a multimillion-dollar deal that the AFL had signed with Telstra to broadcast AFL games on the telco's mobile network.

Analysts have considered the court decision to be detrimental to the growth of cloud computing in Australia. It could place a new legal burden on cloud service providers, since it could mean that they are responsible for the data stored on their cloud infrastructure by their customers. This may deter cloud-computing providers from entering the Australian market.

"The Federal Court case in 2012 concerning the Optus TV Now service highlights the potential for new and emerging cloud-computing services to infringe copyright, or enable their customers to infringe copyright," according to the consultation paper.

The ALRC is keen to hear from the public about whether Australia's copyright law is impeding cloud-computing services, and whether changes should be made to accommodate for this burgeoning technology sector.

"Cloud services, such as digital lockers, may also be used to store and share copyright material acquired illegally," the paper said. "New or amended exceptions presumably should not permit such activity."

Whether cloud service providers should qualify for safe harbour schemes, such as the ones available for carriage service providers, is beyond the scope of the review.

The consultation paper also addressed a number of other topics related to copyright and Australia's digital landscape, one of which concerns caching and indexing online content.

There are currently no exceptions granted to internet service providers (ISPs), search engines and other internet "middle men" to cache content, some of which may be copyrighted content, for indexing and operational efficiency.

"Caching improves the internet's performance, allowing search engines to quickly retrieve cached copies on its server, rather than having to repeatedly retrieve copies from remote servers," the paper noted.

But in doing so, search engines may be infringing copyright. There's also the sticky situation when search engines display links to websites that do contain pirated content. Australian copyright laws cannot determine whether companies such as Google are liable, and there is room to broaden exceptions to the Copyright Act to accommodate for caching and indexing content.

The rise of social networks has propagated a culture of sharing copyrighted content with friends. This user-generated content is also not covered under local copyright laws. While exceptions to the Act can be made for user-generated copyright content for non-commercial use, the parameters need to be defined.

Tying into the growth of social networks is the topic of data and text mining. This could be for analytics and research purposes, with data, text and images collected being stored in databases and repositories.

For commercial companies, this data can prove to be extremely valuable. Yet, there is currently no specific exception in the Copyright Act for data mining that may involve copyrighted content being copied without permission.

Individuals or organisations interested in making a submission in response to the copyright law review can do so here.

Submissions close on 16 November, and a report is due in 2013.

Australia - Broadband Market - Overview, Statistics and Forecasts - 2012

(http://www.researchandmarkets.com/research/nf2r64/australia_broadb) has announced the addition of the "Australia - Broadband Market - Overview, Statistics and Forecasts" report to their offering.

In this report we provide an overview and analysis of the fixed and mobile broadband market including infrastructure statistics, major internet service provider statistics and information on the key providers. BuddeComm's 2012 Australia Broadband Market - Overview and Statistics annual publication profiles key sectors in Australia's broadband market.

This report also provides a statistical overview of the broadband market in Australia and includes an overview of the major network operators, wholesalers and retail service providers. The report also examines the developments in HFC networks, while the statistical sections of the report provide historical data as well as forecasts relating to fixed and mobile broadband usage, internet service providers and the business broadband market/sector.

Market highlights:

- The internet-connected home is nearly ubiquitous across Australia, with over 80% penetration rate predicted by end-2012;
- Total value of the broadband markets is now more than $4 billion;
- Cloud-based usage by business increasing as backups and shared data come from faster connections;
- Online businesses are sustaining higher financial returns into 2012;
- Data usage by users increases by 80% year-on-year in 2011 and is set to double as more broadband-enabled devices are used;
- Connected or smartTVs will see a very rapid uptake over the 2013-2015 period;
- An overview of new trends and existing technologies is provided;
- Penetration rate of HFC broadband subscribers is under 10% of the total broadband market in Australia;
- Key usage trends for the fixed broadband market.
 
Key Topics Covered:

1. Statistical Overview
2. The National Broadband Network (brief overview)
3. Business Market Statistics
4. Residential Market Statistics
5. DSL Market, Overview, Statistics and Providers
6. HFC Cable Networks
7. Mobile Broadband - Statistical Overview and Forecasts
8. Market Forecasts

For more information visit http://www.researchandmarkets.com/research/nf2r64/australia_broadb

 

Read more at http://www.virtual-strategy.com/2012/07/23/research-and-markets-australia-broadband-market-overview-statistics-and-forecasts-2012#a1ypdAv9u40lv7gH.99

Anonymous Steals 40GB User Data From ISP in Australia

Notorious hacker group Anonymous has claimed to have stolen 40GB worth of user data from an Australian internet service provider and is threatening to publish it online.

The group hacking into the systems of AAPT, comes as the second stage of a campaign, protesting against proposed changes to privacy laws that would force ISPs (internet service providers) to store user data and make it available to intelligence agencies for up to two years.


Anonymous Australia claimed the attacks aimed to show how we should not trust ISPs to store personal information.

"You want to trust these ISPs with your data? When they can't even keep it secured?! If I were you, I wouldn't trust anyone but myself with my data," News.com.au quoted the Anonymous, as saying.
Anonymous claimed that it plans to release a sample of the data later today, but will deliberately censor private details, because "the people were not their target".

"We don't want to publish personal innocent personal details like some of the other Anons have in other operations which have lost the public's support. Our target is the (Federal) Government who think they can get away with doing something like this," the hackers said.

The threat comes just days after Australian arm of the group claimed responsibility for bringing down 10 government websites and warned that it will continue the attacks on ".gov.au" sites until plans to force ISPs to store user data and make it further available to security services are shelved.
AAPT remained unavailable for comment.

Movie Studios Fail in Appeal Against Internet Service Providers

In a recent unanimous decision,(1) the High Court ruled that an internet service provider (ISP), iiNet, was not liable for authorising the copyright infringements committed by users who downloaded movies on its network. The ruling brings to a conclusion the copyright battle commenced by the movie studios in 2008.


Facts

The important legal issue in these proceedings was whether iiNet had authorised the infringing acts of its customers who had downloaded unauthorised copies of movies using iiNet's network. The movie studios had argued that iiNet authorised its customers' infringements under Section 101(1) of the Copyright Act 1968 (Cth) through:

• its provision of unfettered internet access to customers;
• its knowledge that some customers were infringing copyright (as a result of infringement notices being issued on behalf of the movie studios); and
• its refusal to warn infringing customers or terminate their accounts.

Decision

In a relatively brief decision, the High Court found that iiNet's conduct did not amount to authorisation. The court noted that Section 101(1A) of the act specifies three criteria that had to be taken into account when determining whether iiNet had authorised the infringing acts:

• the extent of iiNet's power to prevent customers from committing the primary infringements of copyright;
• the nature of the relationship between iiNet and its customers; and
• whether iiNet took any other reasonable steps to prevent customers from committing the infringing acts.

The High Court held that iiNet's power to prevent infringements was limited. The court held that iiNet had limited technical ability to prevent infringements, for the following reasons:

• It did not host infringing content.
• It had no involvement with or control over the BitTorrent peer-to-peer file sharing system used by its customers.
• It did not assist users in finding infringing content.
• It could not actually remove infringing content from customers' computers.

Furthermore, it was noted that even if it could take such actions, iiNet could not prevent customers from using another ISP's services. This left iiNet with only the power to terminate the contractual relationship with its customers, which the court considered an indirect and limited power.

When considering whether iiNet had taken reasonable steps to prevent infringing acts, the court held that the information provided in the infringement notices on behalf of the movie studios did not give iiNet a reasonable basis on which to warn alleged infringing customers or, if necessary, to suspend or terminate their accounts if the infringements continued.

The court noted that the notices provided limited evidence of the infringements. Furthermore, it was impractical and costly for iiNet to verify the allegations contained in the infringement notices without it infringing the movie studios' copyright itself. Finally, the court considered that iiNet's unwillingness to act on the notices was based simply on its assessment of the risks of taking action on such limited information. The High Court concluded that iiNet's failure to act on the infringement notices did not amount to authorisation of copyright infringement by its customers.

Comment

This case deals a severe blow to movie studios in their attempts to hold an ISP liable for authorising the infringing acts of its customers. Importantly, this decision goes further than the 2011 decision of the Full Federal Court. In that case, the court had held that iiNet had not authorised the infringements due to the fact that the infringement notices were inadequate.

Nonetheless, it had hinted that had the infringement notices provided "unequivocal and cogent evidence" of infringement and had the movie studios provided contractual protection to the ISP against costs and liabilities to customers for wrongful termination of accounts, iiNet's failure to act might have been unreasonable and therefore amounted to authorisation.

In this decision, the High Court also referred to the lack of information provided in the infringement notices. However, the High Court also found that iiNet had only an indirect contractual power to prevent the infringing activities of its customers.

The High Court noted that even if iiNet had terminated a customer's account, this did not ensure prevention of the infringing activity. The emphasis of the High Court on iiNet's limited indirect power means that it will not be enough for movie studios simply to address the inadequacies in notices provided to ISPs.

On a final note, three of the High Court judges expressly noted that:

"the concept and the principles of the statutory tort of authorisation of copyright infringement are not readily suited to enforcing the rights of copyright owners in respect of widespread infringements occasioned by peer-to-peer file sharing."

This is a signal that other alternative approaches (eg, a voluntary industry code) will be needed by movie studios and other copyright owners when dealing with widespread copyright infringements through peer-to-peer file sharing. The outcome of this case has likely increased the bargaining power of ISPs generally in Australia in any negotiations towards an industry code.

The one hope for copyright owners may be found in the High Court's analysis of the degree of control held by ISPs over copyright infringements. On this sort of analysis, other intermediaries - such as social networking platforms or search engines - may be held to have a greater degree of power to control and prevent the infringement of copyright using their services. Accordingly, claims against those intermediaries for authorisation of infringing activities using their services may find greater success.

Roxon Questions Plan To Track Users Web History

''THE case has yet to be made'' for a controversial plan to force internet providers to store the web history of all Australians for up to two years, according to Attorney-General Nicola Roxon, who has acknowledged the financial and privacy costs of such a scheme.

Ms Roxon expressed her reservations in an interview with Fairfax Media, publisher of this article, in what may be a sign the government does not have the appetite for forcing through Parliament the most controversial proposal among a package of more than 40 national security measures.

The proposals, if passed, would be the most significant expansion of the Australian national security community's powers since the Howard-era reforms of the early 2000s.

Regarding data retention, Ms Roxon said she had some sympathy for the view of the national security community but said: ''I am not yet convinced that the cost and the return - the cost both to industry and the [civil liberties] cost to individuals - that we've made the case for what it is that people use in a way that benefits our national security. I think there is a genuine question to be tested, which is why it's such a big part of the proposal.''

That is a view that will be greeted with some apprehension by one of the main advocates for such a regime - Neil Gaughan, who heads the federal police's High Tech Crime Centre.

''If we don't have a data-retention regime in place [in the future], we will not be able to commence an investigation in the first place,'' he said. ''And it's already getting increasingly difficult.''

Opposition to such laws in Germany - the government has declared them invasions of privacy and forbidden them - had left German federal police agency the Bundeskriminalamt (BKA) a laughing stock, Assistant Commissioner Gaughan said. ''No one can work with them internationally; if I go to Germany with an inquiry about who called who, when and why, they can't tell us,'' he said.

''It's causing the BKA all sorts of problems.'' However, Andrew Lewman, the executive director of Tor, which makes software that disguises a person's location when surfing the web, said data retention actually impeded the effectiveness of law enforcement.

''It sounds good and something sexy that politicians should get behind,'' he said.

''However, it doesn't stop crime, it builds a massive dossier on everyone at millisecond resolution and creates more work and challenges for law enforcement to catch actual criminals.

''The problem isn't too little data, the problem is there is already too much data.''

He said while its collection may be innocent today, it could cause problems in the future.

''It will also help future witch-hunts for people doing acceptable things today but at some point in the future these activities might seem suspect,'' he said.

The debate about the proposed legislative changes is already shaping up to be significant, with political activist outfit GetUp! and online rights group Electronic Frontiers Australia joining forces to start an online campaign to petition Ms Roxon about the proposals.

The committee with the job of inquiring into the proposals has already reacted to comments that the four weeks offered to the public to provide submissions was not long enough, yesterday announcing it was extending the deadline by a fortnight.