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Opinion: Australia telcos on the back foot.

Fri 10th Feb 2017

Updates below: 28 April 2017.

We’ve been watching the debate about regulatory compliance for copyright enforcement unfold in Australia. If things don’t change soon, Australian broadband users could lose substantial personal online privacy and security rights.

In December, the Federal Court ordered internet broadband companies like Telstra to block five copyright-infringing websites, including torrent site The Pirate Bay. The service providers were given 15 business days to implement the blocks from the 15th Dec.

This change to the law is important because this is the first time copyright has been used successfully in Australia to block access to a website.

It took approximately two years for the case to work its way through the courts; content rights holders will now seek to expand the blocking enforcement scope to protect their existing business models.

The wider issue is that because the Federal Court has allowed Internet service providers to choose the method of blocking, they implemented the lowest cost enforcement method, DNS redirection.

However, DNS settings are very simple for a broadband user to change, & end users figured out they could easily create a workaround. These users published this workaround on their blogs, and the traditional media picked up on these blog posts and increased awareness of the ineffectiveness of the blocking method.

australian-copyright-website-blocking-fails

When you consider the service providers get compensated a paltry $50 per domain blocked, it is logical they are going to use the cheapest approach possible.

So what happens now? Graham Burke, co-CEO of Village Roadshow told Mashable in January 2017 to expect further cases when the court resumes in February. Burke said Village Roadshow was working closely with the music industry on site blocking and was happy to shoulder the initial burden of bringing site blocking cases. “We’ve done so for a couple of reasons,” he said. “We’re significant content owners, and it’s good business.”

The Australian Minister of Communications Mitch Fifield was asked for comment; his office responded; they’re going take a hands-off approach and leave the matter to the courts saying – “A future review will consider whether the implementation of these website blocking decisions is operating effectively and whether improvements are necessary.” In the short term; “The decision to order the blocking of a website, and how that blocking is to be implemented, is a matter for the parties involved to put to the Federal Court to determine.”
australian-communications-minister-questioned-about-copyright-blockingThis means the service providers and Content owners will be heading back to court. Our assertion is behind closed doors lobbying is continuing to occur. Sadly we’d assert the service providers are on the back foot; as content owners now have a process to pursue the addition of new websites to be blocked nationally, and content owners can legitimately say the methods deployed are not effective.

We expect content owners will continue the case to enhance the capability of the site blocking because “it’s good business” while adding new domains to the blocking list.

  • The Ministry is taking a hands-off role will so leave the matter to the courts.
  • The courts could find the measures service providers have taken are not effective and impose a fine.
  • The content owners seek measures to prevent the use of 3rd party DNS workarounds by expanding the scope of blocking.
  • Alternatively, the courts find the measures the court have imposed are ineffective and require service providers to take further action by defining the technology requirement, increasing the legal costs and compliance cost burden.
  • The sector will bear much higher costs for compliance via deep packet inspection to block torrent traffic.
  • Alternatively, under sustained pressure, the Ministry may conduct a review of the suitability of DNS as a regulatory enforcement measure.
  • This action increases the risk that VPN use is then regulated, reducing commercial flexibility and removing consumer rights for private and secure browsing.
  • More browsers encrypt from the browser to the server reducing effectiveness
  • To maintain the status quo (be it, not a good one) the industry needs to be proactive to protect the rights of users (Privacy & Security). By taking one step forward, they can gain create new a bargaining chips for future negotiation/court action. These actions will be seen favourably in the eyes of Department of Communications and help reduce the pressure on the government from studios.

Bypass supports net neutrality, and we can see a way forward that maintains the balance for all parties. Ironically it’s because, at one time, we sat on the other side of the table from a huge amount of pressure for content rights holders while we were attempting to reduce piracy by offering access to paid streaming websites.

Our telco Regulatory Compliance platform can help the Aussie service providers protect user rights by enhancing the capability to prevent workarounds as our technology intercepts 3rd DNS workarounds.

If not, the future isn’t bright. Expect end user broadband costs to go up as service providers are forced to use deep packet inspection to see all of your online behaviour. In a worst case, users could lose the right to privacy a VPN provides, that is if the government registers VPN like they do in India, or ban VPN’s like they did in the UAE.

The technical methods for site blocking can be mutually agreed to by service providers and rights holders. Our DNS platform prevents the workaround, the current weakness in the DNS method the service providers have chosen.

We provide our regulatory compliance platform to telco’s in India; this could work for Aussie without significantly increasing the cost for telcos as it’s implemented transparently and requires no changes to the existing network infrastructure. This approach removes the risk of future mitigation by creating an effective DNS block which maintains the status quo and reduces future business risk.

Update 28 April 2017: In the wake of its first application for injunction, Roadshow in February launched legal action seeking to block another 41 websites.

Additional Comment. Bypass first published this blog on Fri 10th Feb 2017. According to ComputerWorld, the dispute over how to deal with mirror and proxy sites has started. As expected with the content owners looking to extend blocking to include proxy sites to the list of blocked domains.

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