Everything you need to know about three strikes

The government has flagged new anti-piracy measures – but what will they mean for consumers?
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01.The policies

Don't Cut the Net campaign graphic

The federal Attorney-General George Brandis has indicated that the government is considering introducing two far-reaching policies aimed at reducing online piracy – such as the downloading of movies and music from torrent and other P2P websites. These proposed policies include a so-called "three-strike" scheme and an internet piracy filter. 

Update 29 May 2014: 

It was confirmed at the senate estimates hearings on 28 May that the Attorney-General's Department is actively considering a graduated response. The department revealed that four individuals within its Civil Law Division are involved in a copyright policy working group, which is considering a graduated response as one of several options. 

The Attorney-General George Brandis also revealed that he is continuing to meet with stakeholders on this issue, but refused to reveal who they are. The information was revealed through line of questioning by Senator Scott Ludlum.

CHOICE is continuing its campaign asking for consumers to help fund an advertisement in national media.  

Update 12 May 2014: 

The federal government is apparently moving quickly to enact anti-piracy measures, with Fairfax media reporting that Cabinet will meet as early as this week to discuss stopping illegal downloads. 

In response to this CHOICE has launched a campaign asking consumers to help us fund an ad to run in the national media. This ad will tell the government not to force costly policies onto consumers and ISPs, policies that won't even address the root causes of internet piracy.

Internet service providers (ISPs) have argued they shouldn't be responsible for protecting mostly US content from alleged copyright infringements and say the "three strikes" approach has proven ineffective in other market, a point backed up by a recent study published by a Monash University researcher. 

Update 8 April 2014:

The Financial Review has reported that internet service providers (ISPs) will begin discussions with the entertainment industry on a "3 strikes"-like scheme this year. The Department of Communications and the Attorney-General's Department are preparing policy options for Communications Minister Malcolm Turnbull and Attorney-General George Brandis. CHOICE will work to ensure that consumers are also represented as well.   

What is three strikes? 

Under three-strikes policies, also known as graduated response schemes, consumers receive up to two warnings for alleged infringement before being penalised on their third strike. This can include fines, reduced bandwidth and even having their internet access terminated. 

While most schemes have three strikes, they can have more. The US scheme, run voluntarily by ISPs, has five strikes. 

The problem with these schemes is they have proven to be ineffective and costly. In its first three years of operation, France’s three-strikes scheme resulted in just four prosecutions and three actual convictions, despite there being millions of allegations of infringement.

These schemes can also lack due process and proper judicial oversight, which puts consumer rights at risk. Under the New Zealand scheme, rights holders don’t even have to provide evidence for their allegations of infringement. 

Three-strikes schemes have proven to be ineffective at reducing piracy, incredibly costly for consumers, ISPs and taxpayers, and overly bureaucratic. 

What is the internet filter? 

The Attorney-General also hinted at the possible introduction of an internet filter. Under the approach he outlined, the federal court would have the authority to compel ISPs to take down sites hosting infringing content. 

In effect, this would be an internet filter. 

Internet filters are riddled with technical problems. Firstly, they can be easy to bypass, both by users and the sites themselves. 

Secondly, they can be applied incorrectly, and as a result take down legitimate sites. This is what happened last year when ASIC attempted to target sites giving fraudulent financial information and inadvertently took down around 250,000 legitimate sites. 

Why do Australians pirate? 

CHOICE believes that the best way to address online piracy is to improve access to legitimate content so that consumers can access it when they want to and in the format they want. We don’t agree with forcing costly and draconian policies onto consumer and ISPs without addressing the root causes of piracy.  

Australian consumers pay more money for less content which they receive later than consumers in the USA and Europe, among other markets. It’s time for the content industry to take some responsibility for their part in the market failure that really lies behind online piracy.

If consumers get timely and affordable access to the content they want they will be less likely to pirate. 


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