Exetel's Copyright Compliance Measures

Open discussion regarding technological or telecommunication issues
WHW
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Location: Kensington, NSW

Exetel's Copyright Compliance Measures

Post by WHW » Wed Oct 15, 2008 6:11 pm

Dear Forum Admins,

In addition to being an Exetel user, I am studying undergraduate law at the University of New South Wales. As part of my Honours program, I am completing a paper on copyright liability risk for Australian Internet Service Providers. Part of my paper will be devoted to the measures taken by Australian ISPs to minimise their risk of copyright liability as a result of their subscribers' internet access.

I am writing in hope that you may provide me with more information about the measures implemented by Exetel to identify, monitor and decrease its risk of copyright liability.

From what I understand, Exetel implements the following measures in relation to copyright compliance:
  • A (relatively) comprehensive set of contractual terms that relate to copyright infringement, including its Acceptable Use Policy (particularly clauses 2.1, 2.2, 4.1 and 4.2).
  • A blocking system (AUP, clause 2.2) upon receipt of copyright infringement notices.
  • A 3-strikes policy (AUP, clause 4.3)
  • Controlling bandwidth of P2P connections (General T&Cs, clause 17.3)

I am hoping you can provide me with more information about:-

(1) Receipt and treatment of copyright infringement notices sent by organisations such as MIPI and AFACT:
  • How often are these notices sent to Exetel?
  • Is the blocking system automatically or manually processed?
(2) Suspension and termination of accounts suspected of being used for substantial copyright infringement:
  • What percentage of users have had their accounts suspended/terminated?
  • Has any customer successfully contested their conduct "by providing a valid defence [to an infringement notice] in writing to the issuer of the notice that is satisfactory to Exetel" (AUP, clause 4.3)?
  • What does Exetel mean by a 'valid defence'?
(3) Removal of copyrighted materials stored on free webspace:
  • Does Exetel routinely scan its webspace for infringing files?
(4) Other measures taken by Exetel to comply with the Copyright Act 1968 (Cth)?

Lastly, I wish to thank Exetel for providing the inspiration to come up with this topic, especially the writings on John's blog (although, I must admit, the legal issues are murkier and more grey than John, or users on this forum, have put them).


Warm regards,
Wen.

CoreyPlover
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Re: Exetel's Copyright Compliance Measures

Post by CoreyPlover » Wed Oct 15, 2008 9:07 pm

Steve's blog (http://steve.blogs.exetel.com.au) also has more insight into the technical implementation. In particular http://steve.blogs.exetel.com.au/index. ... aring.html states a figure of 0.25% of Exetel's customer base has had an infringement notice.

WHW
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Location: Kensington, NSW

Re: Exetel's Copyright Compliance Measures

Post by WHW » Fri Oct 17, 2008 9:27 pm

Thanks for your reply Corey.

Besides the T&Cs and the 2 blogs, is there anything else you can tell me?

CoreyPlover
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Re: Exetel's Copyright Compliance Measures

Post by CoreyPlover » Fri Oct 17, 2008 11:39 pm

Only from what I've read on the public forums:
  • Contractual terms and AUPs are pretty standard (in concept at least) amongst ISP. Not sure that Exetel has anything drastically different written into theirs relative to other ISPs
  • The blocking system is quite unique amongst Australian (international?) ISPs. As soon as you become aware of how it works, you realise how it nicely address the issue of direct notification and acceptance by the end user (i.e. they don't get unblocked until they reply and they cannot possibly claim ignorance because it is a right "in-your-face" announcement). It extends even more nicely into other areas too like spam and virus blocks which aren't so legal-focused but instead require a simple "click here once you are sure your system is not infected". There are some technical issues however with some users reporting redirections not functioning correctly, but communication via the traditional avenues is still available.
  • Some further specific links for you: http://steve.blogs.exetel.com.au/index. ... -MIPI.html, http://steve.blogs.exetel.com.au/index. ... cuser.html, http://steve.blogs.exetel.com.au/index. ... be....html (this last one gives a snapshot of the actual number of infringement notices and blocks enforced for each day over 1 week) (Edit: Also http://forum.exetel.com.au/viewtopic.ph ... 59#p207659 was a previous thread on a similar matter)
  • As you point out, the 3-strikes policy is mention in the AUP. But it may differ from other, similarly names schemes, in that 3 copyright infringements in a single batch may trigger it. I'm not sure of this though. Regardless, there are clauses that permit instant suspension or disconnection
  • The P2P bandwidth management is not a mean to address copyright liability. This is simply a pragmatic business decision due to bandwidth considerations and requirements of the various internet protocols
  • Mention has been made on threads about how the infringement notice and blocking system, as for many other systems at Exetel, are largely automated. To what extent exactly; I'm not sure. (Edit: http://steve.blogs.exetel.com.au/index. ... l#comments under the last comment states: "The forerunner system and its variations were done manually for a couple of years. The present automatable system evolved from that. Most infringement notices now have all the information in XML fields, which makes it much easier to parse.")
  • It won't add anything of value to talk about customer defences because aspects like this are very much related to very specific circumstances. So I doubt any public information about this will be available, even of a general nature.
  • Free webspaces are automatically purge of all media files, unless exemption is requested prior to the media files being uploaded. You effectively have to declare to Exetel that you are the copyright holder for all media files held in specific directories, and those directories are then exempted from the nightly purge.
Final disclaimer: I am not Exetel staff; just a user and the above are my opinions based on what I've gleaned from these forums.

Gidget
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Re: Exetel's Copyright Compliance Measures

Post by Gidget » Fri Oct 17, 2008 11:54 pm

WHW wrote:(3) Removal of copyrighted materials stored on free webspace:
* Does Exetel routinely scan its webspace for infringing files?
CoreyPlover wrote:Free webspaces are automatically purge of all media files, unless exemption is requested prior to the media files being uploaded. You effectively have to declare to Exetel that you are the copyright holder for all media files held in specific directories, and those directories are then exempted from the nightly purge.
Further to Corey's response, if you log into your User Facilities and go to this page (Web/Blog Setup -> Web Space Configuration) you can see more information on this aspect (scroll to the bottom of the page).

Cheers

Gidget
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or call Exetel VOIP numbers (02) 8030 1000 or 1300 788 141 (log faults 24x7)
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shapingsucks
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Re: Exetel's Copyright Compliance Measures

Post by shapingsucks » Sat Oct 25, 2008 6:02 pm

There is a crude way around the block :wink:

ForumAdmin
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Re: Exetel's Copyright Compliance Measures

Post by ForumAdmin » Sat Oct 25, 2008 10:24 pm

WHW wrote:Dear Forum Admins,

In addition to being an Exetel user, I am studying undergraduate law at the University of New South Wales. As part of my Honours program, I am completing a paper on copyright liability risk for Australian Internet Service Providers. Part of my paper will be devoted to the measures taken by Australian ISPs to minimise their risk of copyright liability as a result of their subscribers' internet access.

I am writing in hope that you may provide me with more information about the measures implemented by Exetel to identify, monitor and decrease its risk of copyright liability.

Wen.
We have gone to the expense of taking a sutable SC's advice on where we stand in terms of the current acts and the various court decisions relating to the acts.

That advice, pretty much, gives Exetel a 'clean bill of health' in terms of complying in every respect to the legal requirements as they currently exist and, also, in terms that a litigant may seek to have them interpreted.

WHW
Posts: 7
Joined: Wed Oct 15, 2008 5:22 pm
Location: Kensington, NSW

Re: Exetel's Copyright Compliance Measures

Post by WHW » Mon Oct 27, 2008 5:42 pm

Thank you Corey, Gidget and ForumAdmin for your help...

ForumAdmin, would it be possible that I have a look at the advice you were given?

Regards,
Wen.

Triggery
Posts: 46
Joined: Fri May 25, 2007 11:11 pm

Re: Exetel's Copyright Compliance Measures

Post by Triggery » Thu Nov 20, 2008 6:45 pm

Film industry launches legal action against iiNet to prevent online peer-to-peer copyright infringement.

http://www.afact.org.au/pressreleases/A ... _iiNet.pdf

Looks like iiNet might be the first to test the waters. Maybe they should have sought a similar 'clean bill of health'. I'm sure it's going to cost a bit to defend themselves...

ForumAdmin
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Re: Exetel's Copyright Compliance Measures

Post by ForumAdmin » Thu Nov 20, 2008 7:42 pm

Triggery wrote:Film industry launches legal action against iiNet to prevent online peer-to-peer copyright infringement.

http://www.afact.org.au/pressreleases/A ... _iiNet.pdf

Looks like iiNet might be the first to test the waters. Maybe they should have sought a similar 'clean bill of health'. I'm sure it's going to cost a bit to defend themselves...
We always said that would be the outcome and that was why we did everything possible to ensure that we weren't "selected" as the company to attempt to get the current law interpreted in what will almost certainly be a very expensive 'test case'.

We would not have easily survived the financial burden of defending such an action.

Our approach has always been to minimise the risks to us, and therefore to our customers by, very publicly, making our position clear - for which we got a lot of hysterical criticism on more than one ocasion.

I'm glad we adopted our approach and not the loud mouthed approach adopted by Michael Malone - that man really needs to up his dose of reality pills.

ForumAdmin
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Re: Exetel's Copyright Compliance Measures

Post by ForumAdmin » Thu Nov 20, 2008 8:56 pm

WHW wrote:Thank you Corey, Gidget and ForumAdmin for your help...

ForumAdmin, would it be possible that I have a look at the advice you were given?

Regards,
Wen.
It cost us $A25,000. It's not something I am particuarly happy to provide to other people free.

WHW
Posts: 7
Joined: Wed Oct 15, 2008 5:22 pm
Location: Kensington, NSW

Re: Exetel's Copyright Compliance Measures

Post by WHW » Thu Nov 20, 2008 11:48 pm

ForumAdmin wrote:It cost us $A25,000. It's not something I am particuarly happy to provide to other people free.
Thanks for your reply, ForumAdmin, I understand. Bit of a long shot on my part anyway (but would've loved to see what cases/references counsel used).

With great respect to senior counsel, the more I think about this topic, the more I believe that any legal advice given by anybody cannot give Exetel, or any ISP, a "clean bill of health". If the law were that clear, I would not need to write a 12,000-word thesis on it, and AFACT would not need to take this dispute to court. It is most unfortunate that the law on this topic is so murky.

I was reading commentary on our carriage service provider 'safe harbour' provisions (Part V, Div 2AA, Copyright Act). As far as I know, there have been no Australian cases on the 'safe harbour' provisions. The author of the commentary therefore referred to some US Federal District Court cases dealing with s512 of the DMCA, the law upon which our 'safe harbour' provisions were based (as a result of the Free Trade Agreement) -- but to my mind, what weight would an Australian court give to a decision of the US Federal District Court?

ForumAdmin, you implicitly recognise the lack of clarity in the law when you say the law must be 'interpreted' (and you don't want to be the vehicle by which it is 'interpreted'). I believe that nobody really knows what the law is until the Federal Court makes a decision. Experienced, high-charging lawyers can but only make educated guesses. :wink:

In response to a complaint often raised by non-lawyers, namely the constant reference to criminal law concepts in this debate, I would argue that, to a greater or lesser extent, we are dealing with civil liability only. Therefore there is no 'presumption of innocence' (generally, the burden is upon the plaintiff to prove its case, on a balance of probabilities). Likewise the Australian Federal Police will not be dealing with this matter. In this regard, I agree with ForumAdmin in saying that Mr Malone is grossly misinformed when he said to the Australian that iiNet was aware of AFACT's complaints and had forwarded them to the police. Perhaps iiNet should double-check with their legal representation before making such statements.

I am also sad to report that a large number of big ISPs (including iiNet and the Internet Industry Association) have not offered much help to me on my paper. While I realise that busy people running an ISP do not necessarily have time for wishy-washy academic pursuits of an undergraduate law student with too much time on his hands, this problem significantly affects the ISP industry and affects consumers, who form the third set of stakeholders in this dispute.

Healthy debate about where to take copyright law will only serve to benefit everybody: content owners, ISPs and consumers.

Again, I would like to thank Exetel for being the most helpful in this regard. :)

ForumAdmin
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Re: Exetel's Copyright Compliance Measures

Post by ForumAdmin » Fri Nov 21, 2008 8:13 am

Our objective in taking a qualified SC's advice and therefore my use of the phrase "clean bill of health" was to ensure that, shoud AFACT have 'selected' Exetel as the suitable 'recipient' of their law suit we would have been protected from any 'damages' claims by having sought and then acted on qualified advice as to whether the allegations being made by AFACT were, in 'fact', sustainable claims under the law(s) as it/they stood then.

Unlike iinet, based on their public statements, Exetels handling of any copyright holders (including AFACT's) 'allegations' are compliant with not only the law(s) as it/they currently stand but go some considerable way to meeting the realistic assessments of where case law interpretation may in fact expand those current requirements to.

Not wishing to sound as arrogant (and as it may turn out quite as wrong) as Michael Malone, Exetel's decision to put in place painless forwarding of copyright infringement notices plus the ability of the person alleged to have infringed copyright to deal with the allegation within a few seconds competely complying with the current legislation allows Exetel to comply both with the 'letter of the law' and with the 'spirit' of the current law in that our actions may well reduce unintentional and/or 'unauthorised' use of the Exetel internet service to in fact breach copyright

It has always been clear to us, based on the huge amounts of money involved, that an action such as the one now being taken against iinet was inevitable. and that the 'head in the sand' attitude adopted by iinet, among others, just courted the exact result that has now transpired.

It appeared to us that both Telstra and Optus would avoid being the 'chosen sacrificial lamb' due to their track record and long experience of using the Australian legal system to their continual advantage and their immense legal budgets are already budgetted and fully funding rendering legal action against them highly likely too be both enormously expensive and highly protracted.

It was therefore going to be inevitable that, in this scenario AFACT, was going to choose a much smaller company (and we believed Exetel was just big enough and totally financially vulnerable) that would be, by the limitations of its financial resources, keep the costs of defending such an action to the minimum - which would keep the time frame to the minimum and thus allow the process of coercing ISPs in to aiding the copyright holders in reducing the use of the internet as a source/tool of copyright breach.

There was never any chance therefore that Telstra or even Optus would be the target. The cost efficient way of getting a wider/deeper interpretation of the current sections of the copyright act subect to court judgement is to take the action that AFACT have now commenced. Should they be successful in getting a judge to rule "against" an ISP and then subsequently get that judgement upheld on appeal - perhaps as far as the High Court, then they will have achieved very significant progress in reducing the use of the internet to breach copyright.

You don't have to have much of a 'legal mind' to work this out.

If you email me personally I will let you have the SC advice on the basis that it is not used by you in any way other than to provide reference sources for your thesis.

WHW
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Re: Exetel's Copyright Compliance Measures

Post by WHW » Sat Nov 22, 2008 2:14 pm

Thank you for your kind offer. I will comply with your conditions of use and I promise nobody other than myself and my thesis supervisor will see the advice. Please advise me of your email address :)

In return, I hope I will send you my thesis once it is done (which should be Dec 15). Perhaps you might find one or two new things in there that might interest you. :D

Mixer
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Re: Exetel's Copyright Compliance Measures

Post by Mixer » Sat Nov 22, 2008 4:30 pm

WHW thanks for raising an interesting thread, FA thanks as well - being able to have a view of how the corporate decisions are made is fascinating.

I happen to work in Australia in the film industry and the debate about piracy and copyright is of particular interest to me.

There are a number of arguments that are often heard in this debate:

‘Freedom of speech’ is often quoted as an excuse for piracy.
‘Large corporations are just profit gouging so it’s OK.’
‘It’s been shown in the USA and I don’t want to pay Foxtel.’

I can see an element of truth in every case:

Yes the Internet MUST be completely open and free from censorship.
Yes large corporations can, and often do, make large profits.
Yes it has been shown in the USA by a pay for service provider.

However I’d like to highlight one perspective that is sometimes overlooked in the debate.

The Australian film and TV worker.

I make a living from mixing soundtracks for films.
A while ago I worked on a large Kung Fu movie shot in China and posted in Sydney.
Before we had finished the soundtrack pirates had ripped the movie and had it on the internet and into shonky DVD stores around the globe.
So what?
Well the big joke is that fools have used up GB’s or even real cash to buy a pirated copy, and what for?
A really bad copy of the movie with music and sound effects missing, dialogue out of sync, most of the really good special effects are not there and in most cases the show stops playing three quarters of the way in.
Even worse are the hand held wobble cams with foul sound and vomit inducing vision.

It would be a great joke if not for the fact that a lot of international shows I used to work on are now relocating to ‘safe houses’ in the states, another ozzie job lost.

International Multi nationals are not the ones who get hurt, its the artists and workers, the little guy working at Foxtel who gets layed off because subscriptions are down and downloads are up.

Sharing, ripping, downloading, seeding or whatever some may label it as, breach of copyright is still basically stealing, piracy, theft or fraud.

Currently, thank god, I live in a country where stealing is still a crime.

I applaud Exetel on taking a sensible view of the debate and a realistic approach to complying with the law as it stands.

I do not condone the actions of the major film companies, they should embrace technology and make markets more open and in terms of the courts they should have taken on someone their own size (Sol and his pals), however I really question the pirates and even more the freeloaders who want want want, but will not pay pay pay.
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