Disconnecting Pirates from The Net OK

Disconnecting movie and music pirates from the internet would not breach human rights and international law, the federal government says, disputing a UN report released this week.

But the Attorney-General's department said the government remains of the view that ISPs and content owners should negotiate a solution to piracy as opposed to the government stepping in with new laws.

The music and film industries have long pushed the government to introduce "three strikes" or "graduated response" legislation that would see people accused of repeatedly infringing copyright subjected to penalties including warning notices and eventually, disconnection. This process would take place without any involvement from the courts.

On Monday, the music industry backflipped on these demands, while the film industry remained of the view that strict penalties including disconnection should apply to repeat copyright infringers.

Sources said the music industry softened its stance after realising both the government and the ISPs would not accept a policy that saw Australian families cut off from the internet.

The UN report, prepared by its Special Repporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, urged governments to abandon graduated response schemes. It found internet access was a human right.

"The Special Rapporteur considers cutting off users from internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights," the report reads.

"This also includes legislation based on the concept of 'graduated response', which imposes a series of penalties on copyright infringers that could lead to suspension of internet service, such as the so-called 'three-strikes-law' in France and the Digital Economy Act 2010 of the United Kingdom.

"In particular, the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from internet access, and to refrain from adopting such laws."

A spokeswoman from the Attorney-General's department said the government "supports an industry based solution to this issue as the preferred approach to addressing unauthorised sharing of copyright materials on the internet".

Asked whether the government agreed with the UN report and whether the conclusions of the report effectively scuttled any chance of a graduated response scheme being implemented in Australia, the spokeswoman questioned the accuracy of the UN report.

"There is no established principle of international law that any interference with internet access would necessarily amount to a breach of freedom of expression," the spokeswoman said.

The Australian Federation Against Copyright Theft (AFACT), on behalf of the film studios, also said that it did not agree that a graduated response scheme was a breach of human rights. It said it believed the protection of intellectual property was a human right.

Critics of graduated response schemes say it will result in people losing internet access based on an untested allegation of copyright infringement. It would also mean people in share houses could lose internet if one person was a repeat pirate or if someone used their unsecured Wi-Fi networks to infringe copyright.

David Vaile, executive director of UNSW's Cyberspace Law and Policy Centre, agreed with the UN report. He said content owners had enough remedies through the courts to tackle copyright infringement without requiring ISPs to do their bidding. This would also allow the alleged infringer to have their day in court and for evidence to be tested.

But Vaile worried that ISPs were negotiating "at the point of a gun" with content owners and this could have bad consequences for Australian consumers. While iiNet beat legal action from the film studios the judge left open the door for ISPs to be liable for customers' illegal downloading.

"This raises the prospect of ISPs negotiating away their customers' rights to digital citizenship to save their own skins," Vaile said, arguing consumers should have a seat at the table of any negotiations.

Vaile was highly critical of content owners, saying they were seeking to change rules and regulations around the internet in their favour "to mitigate their creative failure to adapt their business models, predicated on old technologies, to changing technological realities, and again offer products that people are able to conveniently access and willing to buy at the price and conditions set".

But Michael Speck, who ran the music industry's high profile case against file sharing network Kazaa and is now in partnership with the creator of Kazaa on a legitimate version of the service, took aim the UN report and Vaile's argument.

He claims international law should not be used to serve the interests of those who misappropriate intellectual property.

"Put bluntly, not protecting the opinions or expressions of artists is a breach of their human rights," said Speck.

"Freedom of speech or expression, despite being routinely proffered, has never been a defence for online infringers of copyright, terrorists or paedophiles."

Speck said it was "weak" for the music industry to back down on demands for a graduated response scheme in its negotiations with ISPs.

"They want three strikes but they don't want to disconnect - then what is the point?"

Pirate Party Australia, as one would expect, opposes any measures to crack down on pirates or disconnect their internet services.

"The rule of law should never be abandoned to protect failing business models, no matter how much money movie studios and record labels donate to major political parties around the world," party spokesman Simon Frew said.