Digital Media

Mandatory ISP filtering legislation will be introduced in Australia around the middle of 2010, after which there will be a one-year period to implement and activate the filtering technology.

The Australian federal government on Tuesday announced it will introduce amendments to the Broadcasting Services Act, which will by 2011 require all ISPs to block refused-classification-rated material hosted on overseas servers.

As part of the new legislation, the government intends to explore what additional process could be implemented around how Web sites are added to the government's "Refused Classification" (RC) list.

The obvious contender for the new RC list's oversight is the Australian Communications and Media Authority (ACMA), which manages a list of locally hosted illegal content, and issues so-called "take-down" notices to local operators.

Read more of Mandatory ISP filter due mid-2011 at ZDNet Australia.

And see also:
• Industry welcomes filter policy
• Telstra supports Conroy's filter
• EFA: Filtering 'damages Australia's reputation'
• Welcome to National Censorship Day

Comcast on Tuesday announced the launch of a pilot program for its Internet customers to keep track of how much bandwidth they're using. The company is finally introducing a Web-based metering program, which will let users check these numbers from any browser.

This comes a little more than a year after Comcast began enforcing a strict 250GB cap on download bandwidth, exiling those who went over twice for an entire year before being able to get Internet service again. In the interim the company had offered no official tool for customers to see how close they were getting to that limit, outside of a free McAfee Security software program that needed to be installed on each computer sharing that connection.

The new online meter is coming first to customers in Portland, Ore., as part of a pilot project, which could be expanded to other parts of the country beginning next year. Those in the pilot will be able to track all activity that goes through the cable modem they have rented from the company or purchased on their own. The meter shows the past three months of data use, though to begin with, users will only be able to see what they've used in December. It tracks each gigabyte used, which the company says is rounded down to the nearest gigabyte instead of rounding up. That data is refreshed every three hours.

Comcast says that this new metering system is quite accurate. To prove that, it hired consulting company NetForecast to do a comparative analysis which put Comcast's meter at within plus or minus 0.5 percent of its own internal testing (PDF).

Comcast's new bandwidth meter will only be available to those in Portland, Ore., before the company rolls it out to other markets.

(Credit: Comcast/CNET)

In an e-mail, Comcast spokesman Charlie Douglas wanted to reaffirm that most Comcast customers will never have a problem with going over. "The median customer consumes approximately 2 to 4GB of data in a month," he said. And even with the new bandwidth monitor, "almost 99 percent of our customers should not be concerned about their monthly data usage or even crossing our 250GB-per-month excessive-usage threshold."

Comcast says it needs to do more testing before branching off into the rest of the U.S. In the meantime, those Portland customers who have been chosen to be a part of it will find an invitation in their e-mail to test it out.

Update: 11:05 p.m. Monday: To note that the site was down most of Monday.

The Pirate Bay was inaccessible most of the day Monday after a group representing copyright owners forced the BitTorrent search engine's bandwidth provider to cut off service, according to a published report.

NForce, the Pirate Bay's latest Internet service provider, complied with a request to shut off service to The Pirate Bay made by Netherlands-based antipiracy group Brein, according to online news site Tweakers.net.

Monday's outage followed a three-hour blackout of The Pirate Bay on Friday. The blackouts are the result of work performed by attorneys based in Sweden who are employed by the big movie studios, according to my film industry sources. The lawyers are hunting down whoever provides bandwidth to The Pirate Bay and then using the threat of lawsuits to pressure the ISPs to stop.

Black Internet, the Pirate Bay's onetime ISP, was threatened with fines in Sweden unless it cut off service. The Pirate Bay then moved to an a Ukrainian ISP, which also received threats, according to the blog TorrentFreak. NForce was next and now that company has had to comply.

Just where The Pirate Bay will go next or how long the site will be down isn't clear. The founders of the site have vowed to continue operating the site no matter what.

The heads of the UK's largest ISPs have co-signed a letter of protest against the proposal to disconnect suspected illegal file-sharers from their broadband service.

The open letter was sent to The Times on Thursday by the chiefs of TalkTalk, BT, and Orange, as well as representatives of the Open Rights Group and the consumer choice organizations Which and Consumer Focus.

It coincided with a detailed argument against the government's proposals, issued as a statement by the Featured Artists Coalition (FAC), the British Academy of Songwriters, Composers and Authors (Basca) and the Music Producers Guild (MPG).

The signatories of the letter to The Times acknowledged the creative industry's concerns about illegal sharing of copyrighted material. Nevertheless, they said the government's latest proposals on how to reduce this are "misconceived, and threaten broadband consumers' rights and the development of new, attractive services."

"Consumers must be presumed to be innocent unless proven guilty," the letter read. "We must avoid an extrajudicial 'kangaroo court' process where evidence is not tested properly and accused broadband users are denied the right to defend themselves against false accusations.

"Without these protections, innocent customers will suffer. Any penalty must be proportionate. Disconnecting users from the internet would place serious limits on their freedom of expression."

The letter's signatories--TalkTalk's Charles Dunstone, BT's Ian Livingston, Orange's Tom Alexander, the Open Rights Group's Jim Killock, Consumer Focus' Ed Mayo, and Which's Deborah Prince--were responding to proposals made by the Department for Business, Innovation, and Skills (BIS) in late August.

In those proposals, Lord Mandelson's department called for disconnection to be an option in the case of persistent illegal file-sharers.

The proposal came before the deadline on a consultation--launched in June by BIS--into the issue of copyrighted material being shared online. That consultation was kicked off by Lord Carter's Digital Britain report, which discounted the option of disconnection as being unnecessarily harsh.

BIS's proposal suggested ISPs should pay a large portion of the cost of the monitoring and legal mechanisms needed to establish which file-sharers should be disconnected.

The signatories of the letter to The Times pointed out that these costs would filter down to broadband customers. They described the plan as "grossly unfair, since the vast majority of consumers do not file-share illegally."

Also on Thursday, the FAC, Basca, and MPG issued a joint statement arguing that a system where suspected illegal file-sharers are monitored, sent warning letters, and punished would not lead to a "vibrant, functional, fair, and competitive" market for music.

"As a result, we believe that the specific questions asked by the consultation are not only unanswerable, but indicate a mindset so far removed from that of the general public and music consumer that it seems an extraordinarily negative document," the organizations wrote.

The organizations argued that the consultation's estimate for the damage done to the content industries by file-sharing--about $328 million per year--was based upon the premise that a P2P-downloaded track equals a lost sale. Therefore, the estimate is no more than "'lobbyists' speak' (as) it has little support from logic, and no economist would seek to weave such a number into a metric aimed at quantifying a 'value gap' for the industries challenged by P2P," they said.

The organizations also noted the costs of monitoring for illegal file-sharing, and said the consultation's estimate of $92 million to $139 million was likely to be a gross underestimate due to the complicated nature of the proposed system.

"Looking backward for insight into how we adapt mass-production product models to the digital age of access and services has been a major obstacle to progress over the past decade," they wrote. "We must begin to look forward to business models that we cannot even imagine yet.

"As creators' representatives, we are willing to be partners with government in exploring and navigating the opportunities and challenges brought by digital technologies. What we will not be a party to is any system that alienates our members' existing audience and potential new audiences."

David Meyer of ZDNet UK reported from London.

8-25-09, 8:07 a.m. To include that The Pirate Bay is back online. To see a detail story on the site go here.

A Swedish district court has ordered an Internet service provider there to stop servicing The Pirate Bay.

The most popular BitTorrent tracker in the world appeared to be inaccessible to many in the U.S. on Monday morning but the blog TorrentFreak reported that the site had found a new connection to the Web and there were reports from readers that they were able to log on to the site. Citing a source close to The Pirate Bay, TorrentFreak said that the tracker was still down but would be back up on Tuesday.

An executive with Black Internet told Swedish newspaper SvD that the court informed the company that it would either shut off The Pirate Bay or face penalties. The founders of The Pirate Bay were found guilty of copyright violations last April.

The executive told the newspaper that Black Internet is not the only ISP servicing The Pirate Bay but is probably the largest. He said none of the other ISPs were affected by the decision. He added that the company is considering options.

It's unclear how long Black Internet will be forced to stop service for The Pirate Bay. The company may not be able to resume service until the appeal filed by The Pirate Bay founders is settled, SvD reported.

The news comes on the heels of a victory for the founders of The Pirate Bay.

Sweden's government run debt-collection agency, commonly referred to as the bailiff, said it could find no attachable assets belonging to three of the four founders of the site. A group of media companies had asked the bailiff to collect the $4 million a court had awarded them after finding the four Pirate Bay founders guilty of copyright violations.

At this point, the future of the site, at least in name, appears to rest with the software maker Global Gaming Factory X, the software maker and operator of Internet cafes. The company said in June it would pay $8 million to acquire The Pirate Bay and the deal is supposed to close on Thursday. But Swedish regulators halted trading in Global Gaming on Friday over questions about the company's financial readiness to complete the transaction.

At the very least, the launch of a new Pirate Bay, one with authorized film and music copies, is unlikely to happen anytime soon.

The International Federation of the Phonographic Industry issued a statement applauding the decision by the court and Black Internet.

"The Court's ruling yet again confirms the illegality of The Pirate Bay's operation and demonstrates the liability of ISPs that provide internet services to The Pirate Bay," the IFPI wrote. "The Pirate Bay seeks to continue to infringe our members' rights on a commercial scale and further actions against ISPs who enable access to The Pirate Bay are planned."

Last December, the music industry's message to song writers, publishers, and musicians was that antipiracy help was on the way. Hopes soared after the major labels announced that they had convinced a group of telecoms to work with them.

Filing lawsuits against individuals accused of illegal file sharing was, for the most part, a thing of the past, said the Recording Industry Association of America, the trade group representing the top music companies. The new strategy was to enlist Internet service providers, the gatekeepers of the Web, to issue a series of warnings meant to increase pressure on alleged pirates in what the RIAA called a "graduated response." Under the plan, those subscribers who refused to heed warnings could eventually see their Web connection suspended.

Six months later, the music industry is still waiting to hear from the RIAA which ISPs have explicitly agreed to work with the association. When the RIAA first announced its new antipiracy project, it didn't name partners. Behind the scenes, industry insiders assured the media that the group would disclose the names of partner ISPs "within weeks." Six months later, however, not one ISP has publicly acknowledged working with the RIAA on a "graduated response."

RIAA CEO Mitch Bainwol

(Credit: Declan McCullagh)

That there are still no announced deals--and there's no guarantee the RIAA can sign any of the major broadband companies--indicates that at best the big recording companies may have spoken too soon when they said broadband providers would help, says one ISP executive. Ironically, at a time when many figured the RIAA had finally hit upon a compelling way to go after music piracy, the association's copyright protection efforts may be more toothless than ever.

"(The RIAA) has tried various ways to turn ISPs and other intermediaries into their own Internet cops," said Cindy Cohn, legal director for the Electronic Frontier Foundation, an advocacy group for Internet users. "What the ISPs appear to be saying is that this isn't our job."

To be sure, the RIAA continues to pitch its plan to ISPs, numerous sources have told CNET News. AT&T has launched tests of a graduated response--everything, that is, but service interruption. The telecom said it would never shut off a customer's service without a court order. The recording companies may soon announce some kind of agreement with one of the ISP trade groups. But this won't bind the group's members and the RIAA will still need to strike deals with individual companies.

"We have been working slowly but surely, directly and through the offices of (New York Attorney General Andrew) Cuomo, with virtually every major ISP on common approaches," said Jonathan Lamy, an RIAA spokesman in an e-mail. "During the past six months, a number of different ISPs have forwarded nearly half a million RIAA notices to P2P infringers. They had not done that before last winter. A number of individual ISPs now argue that notices alone are proving to have a sufficient deterrent impact."

What the RIAA seems to be suggesting here is that it doesn't need a threat of service termination for a graduated response to be effective. This, however, conflicts with what music executives say in private. They want a carrot and stick approach. They know they have to offer the public inexpensive and easy-to-use alternatives to illegal peer-to-peer sites. They also believe chronic abusers won't stop without the threat of a serious punitive consequence.

So, why did the RIAA announce the ISP-based program without any ISPs on board so many months ago?

Some RIAA critics have speculated that the December announcement was a smokescreen to cover the music industry's retreat from the 5-year-old and highly controversial strategy of filing copyright lawsuits against individuals accused of copyright violations. The theory goes something like this: the RIAA needed a face-saving way to walk away from the litigation, which resulted in more than 30,000 people being sued, a fortune in legal fees, a huge public relations black eye, and didn't do all that much to stop piracy.

Ernesto, founder of the blog TorrentFreak, which focuses on file sharing, was always skeptical of the RIAA's announcement. He noted that some telecoms have voluntarily sent warning notices to subscribers accused of illegally downloading songs for years, while other companies refused. He says he sees nothing new.

"Yes, the RIAA, MPAA and other outfits do plan to send copyright infringement warnings to ISPs," Ernesto wrote in March, "but they've been doing so for at least half a decade. Every other month these Hollywood lobbyists pitch their antipiracy efforts to the public...this doesn't mean, however, that something is about to change."

According to the ISP executive who asked for anonymity because he's involved in negotiations with the music sector, the RIAA's tactics in dealing with the ISPs have been too heavy handed.

The executive complained that the RIAA has tried to use Andrew Cuomo to push the ISPs into helping. But Cuomo doesn't have the kind of political muscle to sway the major ISPs when they are acting well within the law, the executive said. There's nothing in the Digital Millennium Copyright Act that requires ISPs to send their own warning letters to subscribers.

And some ISPs say the DMCA is unclear about when they must terminate service of repeat offenders. AT&T executives say they won't cut off someone's Web access based solely on evidence supplied by the recording industry and will only do so after receiving a court order.

"We keeping hearing about how (Cuomo) is supposed to make this happen," said the executive. "You don't see much changing, do you?

So if Cuomo isn't enough, why don't the music labels appeal to Congress to legislate the ISPs into submission? That's easy. The ISPs have much more influence in Washington than the music sector. There's also little public sympathy for recording stars, who are often perceived to be rolling in money--even if this is a reality for a tiny fraction of working musicians.

In an interview with CNET last week, Paul McGuinness, manager of the rock band U2, says that ISPs have for a long time profited from selling broadband to file sharers and have little interest in taking action without seeing financial reward. But he sees some progress around the globe.

"Perhaps broadband subscription sales are saturated in many territories and the ISPs are belatedly but realistically now turning to building revenue collection businesses with the content owners," McGuinness said. "I just hope it's not too late."

Cohn, from EFF, sees it differently. To her, cutting off someone's Internet connection for file sharing is like refusing to sell shoes to someone accused of jaywalking.

"Every day that passes we realize how important Internet connectivity is to people's lives," Cohn said. "The RIAA looks so out of step with what most people think is a reasonable response to (copyright) infringing behavior. Even to the people that believe we're locked into this 19th century view of copyright law, the RIAA looks hysterical."

Having apparently been scared off illegal file sharing in large numbers by a new Swedish law that went into effect April 1, pirates in that country now have a new safe harbor to escape law enforcement.

Three Swedish Internet service providers, among them Tele2, one of the country's three major broadband operators, have stated that they will erase traffic data to protect their customers' privacy.

"It's a strong wish from our customers, so we decided not to store information on customers' IP numbers anymore," Niclas Palmstierna, CEO of Tele2, told Swedish national news agency TT Tuesday morning.

The information is crucial in investigating piracy. When surveying the Internet to spot computers involved in uploading or downloading copyright-protected material, it's easy to capture these computers' IP data. But to identify the person using the computer, it's necessary to ask for the ISP, as IP numbers normally are assigned dynamically by the provider.

The new so-called IPRED law in Sweden, based on an EU directive, gives copyright owners the right to ask for customers' identity from ISPs, if a court agrees.

Strong indications showed that total Internet traffic in Sweden decreased by 30 percent to 50 percent the day the law took effect, and traffic still remains low, as indicated by traffic exchanged between ISPs in major Swedish network exchange Netnod.

Tele2's decision to erase traffic data follows a similar decision by ISPs All Tele and Bahnhof.

The move in itself is not against the law. On the contrary, European law on electronic communication (PDF) demands that ISPs only store traffic data for a limited time period to handle billing, inter-operator traffic, and security issues. The law then requires them to erase that data as soon as possible.

Copyright owners are upset nonetheless. "It's astonishing that someone who claims to be a serious communication operator wants to assist in crime, which is implied by what (ISPs) are doing" when they erase data, lawyer Peter Danowsky told the Swedish daily newspaper SvD.

Danowsky represented the International Federation of the Phonographic Industry in the high-profile Pirate Bay case. Four men were sentenced to prison for assisting in making 33 copyright-protected files available over the Internet. (The IFPI represented a number of record labels in the litigation.)

Overall Swedish Internet traffic apparently dropped drastically on April 1 when a new antipiracy law went into effect. The graph represents traffic in gigabits per second through Netnod, the major Swedish node for exchange of traffic between operators.

(Credit: Netnod)

"Major portions of the Internet traffic derive from illegal file sharing, which makes it an important revenue source for the ISPs," Danowsky added.

The downturn in Swedish Internet traffic results in lowered costs for ISPs, while revenues remain the same as prescription fees are flat rate. But long-term revenues are at stake, as demand for high bandwidth could decrease.

Other major ISPs in Sweden declare they will not follow Tele2's decision. They say they need traffic data to handle security issues. But data will be stored only for a few weeks.

Telia Sonera, the country's largest ISP, tells SvD that it stores data for "a short period," whereas another major ISP, Norwegian Telenor, says it stores data for a maximum of three weeks. So copyright owners that want traffic data must turn to a court very quickly after securing evidence on illegal file sharing if they want a chance to get at the identity behind an IP number.

According to Swedish police, the operators' move to erase traffic data will also make other cybercrime investigations more difficult, Swedish national news agency TT reports.

Meanwhile, the first case under the new IPRED law drags on. Five audio book publishers have turned to the law to get at the identity behind an IP number allegedly used for illegal file sharing, but the ISP Ephone refuses to hand over the information, declaring that the evidence is too weak.

The court now says the material from the parties is extensive and that it largely will be up to the parties to decide how long the court's decision will take, according to the daily SvD.

Mitch Bainwol, CEO of the RIAA.

(Credit: Declan McCullagh)

France has passed a law that requires Internet service providers to cut off Web access of customers accused of illegally downloading copyright material multiple times.

Last Thursday, the French National Assembly passed the "Creation and Internet" law, which implements a graduated response program similar to one the recording industry is asking ISPs in the United States to adopt.

According to a story in BusinessWeek, the accused are first e-mailed a warning that they have been flagged as a copyright violator. If the person is accused a second time, the pressure is increased. Another warning is sent but this time in the form of a letter mailed to the person's house. A third accusation will trigger the "three-strikes" part of the plan, and the person's Internet access can then be suspended for up to a year.

Two weeks ago, CNET reported that AT&T has begun assisting the Recording Industry Association of America (RIAA) by sending out warning letters for people accused of copyright violations. The company also acknowledged experimenting with sending warnings by way of certified letters to customers' homes. The ISP, however, said it would never shut off anyone's service without a court order.

Mitch Bainwol, the RIAA's chairman and CEO, has never called for government regulation in this country, but said that France's decision to implement a three-strikes law is a sign the relationship between ISPs and copyright owners across the globe is only getting stronger.

"Each country will forge its own solutions to this challenge," Bainwol said in an e-mail to CNET, "but the general pattern is clear. ISPs and the content community are working together in a constructive way to find common solutions that work for all sides."

The move by France's lawmakers comes as creators of content ranging from music to movies to book publishers appear to be taking the offensive against illegal file sharing or Web services they accuse of using their copyright work without permission.

High-ranking newspaper executives this week were critical of Google and Web sites that aggregate news for profiting from news stories without compensating the publications that produced them.

Across the Atlantic, the European Union passed the Intellectual Property Rights Enforcement Directive, a law that enables copyright holders to obtain a court order that requires ISPs to hand over IP addresses of people accused of infringing on intellectual property.

Police in Sweden last week began making arrests of those accused of breaking the new law.

Updated at 5:05 p.m. PDT to include explanation of RIAA's graduated response, quotes from RIAA, as well as information about how some ISPs had already implemented their own type of graduated response.

Jim Cicconi, a senior executive vice president at AT&T, says much has been written about his company's relationship with the music industry and some of it is flatly untrue.

This much at least Cicconi wants customers to understand: "AT&T is not going to suspend or terminate anyone's policy without a court order."

On Tuesday, Cicconi told attendees of the Leadership Music Digital Summit that the ISP has begun issuing warning notices to people accused of pirating music by the Recording Industry Association of America. The RIAA, the trade group representing the four largest music labels, said in December that it had received cooperation from some large Internet service providers. CNET reported Wednesday that besides AT&T, Comcast and Cox Communications were also working with the music industry.

There has been some confusion about what the RIAA's graduated response program involves. The program could include suspension or termination of service for repeat offenders. It's up to the ISP to decide. But there are also other forms of escalating responses, such as the sending of multiple letters. Some of the notices could take a stronger tone or perhaps the ISP might follow up with a phone call.

Ideally for the the RIAA, the graduated response would culminate in a temporary suspension of the account for chronic offenders. Some ISPs have balked at that step, but the RIAA is still encouraged by discussions it's had with the ISPs so far.

"We're pleased to be in constructive discussions with several ISPs," said an RIAA spokesman. "We're making important progress, and doing so in a manner consistent with everyone's respective priorities. We're grateful that some of the industry's leading executives came to Nashville and talked through these important issues."

CNET News reported Tuesday evening that Cicconi said AT&T had begun issuing warning notices to people accused of pirating music by the RIAA. The Digital Millennium Copyright Act of 1998 has mandated that ISPs forward those letters to people accused of violating copyright. But AT&T has begun sending its own "cover letter" along with the RIAA's cease and desist notice, according to a company representative. Cicconi confirmed on Wednesday that those letters began going out last week. CNET also reported that in the notices sent to customers was language informing them that the company had the right to terminate service. Cicconi again confirmed that, but said the clause wasn't much more than legal boilerplate.

"It's a standard part of everybody's terms of service," Cicconi said. "If somebody is engaging in illegal activity, it basically gives us the right to do it...We're not a finder of fact and under no circumstances would we ever suspend or terminate service based on an allegation from a third party. We're just simply reminding people that they can't engage in illegal activity."

Cicconi said the company began testing this kind of "forward noticing" late last year and even experimented with sending certified letters. Cicconi said the notices worked. The company saw very few repeat offenders.

The RIAA is encouraging ISPs to strengthen their responses to piracy. Some ISPs, such as Cox, says it had already implemented a policy very similar to what the RIAA is asking for.

Comcast said Wednesday afternoon that it hasn't changed its policy. An executive who spoke at the same conference as Cicconi told the audience that the company has sent 2 million notices on behalf of content owners. A company representative said the company has no plans to test "a so-called 'three-strikes-and-you're-out' policy."

But music industry sources told CNET that Comcast has agreed to cooperate with the RIAA in other ways.

But what happens to chronic offenders? Cicconi said that his company will only send notices and that if a content owner wants more done, they need to see a judge.

"What we do is send notices and keep track of violations and IP addresses," Cicconi said. "It's our view that any stronger action has got to rest with the copyright owner...That's what the courts are there for."

Cicconi raises some important questions. How many ISPs are willing to cut off a customer's Internet connection without a court order, and how effective is the RIAA's graduated response program without one?

Note to readers: Have you received a warning letter from AT&T or another ISP? If so, e-mail me by clicking on the link in my bio below. Please include your contact information. I won't reveal your name in any story if that's what you prefer.