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ISPs offer provisional support for site blocking, question of cost remains

An ISP industry body has offered in-principle support of site blocking to stop piracy, but says it is a "blunt instrument" and that rights holders should foot the bill.

Image by Jaskirat Singh Bawa, CC BY-ND 2.0

An industry group representing Australia's leading ISPs has indicated it would only support the blocking of piracy websites if safeguards against "collateral damage" could be guaranteed. But while the measure has provisional support, the question of who pays has once again reared its head.

In its submission on the Attorney-General's Online Copyright Infringement consultation paper, the industry group Communications Alliance has outlined in-principle support for site blocking, though it warns the measure can be ineffective in dealing with piracy.

"Site blocking might be little more than a temporary solution in some instances, because blocked sites may reappear quickly under a different domain name or web address," said the submission.

Following ASIC's recent admission that it mistakenly requested the blocking of 250,000 websites, CA warned that "'collateral damage' needs to be carefully guarded against, but can be difficult to avoid, particularly when legitimate content is hosted alongside infringing content on the same domain name or IP address".

Despite these issues and the admission that site blocking was a "blunt instrument" for dealing with piracy, CA said "an appropriately structured and safeguarded injunctive relief scheme could play an important role in addressing online copyright infringement in Australia".

A "beneficiary pays" model

However, as with other measures proposed in its submission to the Attorney-General's Department (including a "follow the money" strategy to replace revenue-generating advertisements on infringing websites with anti-piracy messages), CA said rights holders should be the ones to foot the bill for anti-piracy measures as they stand to profit hundreds of millions of dollars through its eradication.

In its submission, CA quotes figures from the Australian Content Industry Group (a coalition of rights holders) that put the cost of piracy to the Australian industry at AU$900 million. CA argues that recouping even some of this figure would be a significant win for rights holders, and therefore a "beneficiary pays" model should be introduced.

A small fraction of this economic value would be more than sufficient to fund the initial establishment and primary operating costs of the scheme.

Australian ISPs believe that RHs [rights holders], who will overwhelmingly enjoy the economic benefits of any online copyright enforcement scheme, should reimburse the reasonable costs of ISPs who assist them. This approach is consistent with other types of assistance that ISPs provide to third parties, for example, law enforcement agencies.

Some rights holders have previously argued that ISPs should bear the cost of enforcement, saying their product facilitates piracy; Village Roadshow co-CEO Graham Burke went as far as saying one ISP, iiNet, was "selling a car which happens to kill people on the roads, so they should be paying towards that".

However, Communications Alliance contested the argument that ISPs were "unwitting facilitators".

"Even if the 'unwitting facilitator' descriptor is accurate, Communications Alliance does not agree that this logically constitutes an obligation on ISPs to fund the costs involved in helping rights holders to gain the economic reward flowing from reduced online copyright infringement," it said.

"Why should consumers of a lawful service pay additional costs for measures designed to prevent the wrongs of a minority?"

Update 4:00 p.m. AEST: While also a member of Communications Alliance, Telstra has come out on its own in public support of overseas site blocking, saying it agrees with the measure "in principle". Telstra also reiterated CA's comments on funding, saying any solution to piracy woudl require "a mechanism where ISPs' reasonable costs are met by rights holders".