ARIA and BigPond at war over copyright infringement

A LEGAL stoush has emerged between Australia's music industry and the country's largest internet service provider, BigPond, over the potentially explosive issue of copyright infringement.

A LEGAL stoush has emerged between Australia's music industry and the country's largest internet service provider, BigPond, over the potentially explosive issue of copyright infringement.

Letters obtained by Media -- exchanged between legal representatives of the country's peak music industry body, the Australian Recording Industry Association (ARIA), and BigPond -- from earlier this year show a gulf between the two parties' positions. Sources from both the music industry and the Telstra-owned BigPond said last night their positions had not changed since the legal letters had been issued.

A letter from ARIA's legal team, Allens Arthur Robinson, to Telstra's general counsel for broadband and media, Simon Brookes, in late February told BigPond it had "clear responsibility" under copyright laws "to take reasonable steps to address illegal file sharers on its networks".

Those "reasonable steps", in the view of the music industry, involved BigPond co-operating by issuing "notice letters", asking offending subscribers to stop file-sharing music illegally under what is described as a "notice and disconnection" regime.

At the heart of the stalemate between ARIA and BigPond is the hundreds of millions of dollars that online piracy is costing the music industry, as well as film and TV companies.

The practice ARIA wants BigPond to implement is about initially warning errant subscribers about their copyright infringements, and ultimately telling them their service may be "terminated" if they repeatedly offend.

The ARIA letter told BigPond that Allens had "been instructed to request your confirmation, within 14 days ... that Telstra is willing to implement the 'notice and disconnection' procedure outlined in this letter."

It went on: "If we do not hear from you within 14 days, we will assume that Telstra is not willing to co-operate."

Mr Brookes in March sent back a letter within ARIA's deadline, but in the reply told Allens that Telstra was "not prepared to implement the notice and disconnection regime".

The BigPond general counsel also suggested the music industry directly pursue offenders through the courts.

"As you know, the Copyright Act provides rights holders with an arsenal of remedies to take direct action against infringers in the Australian Courts ... As far as we are aware, neither your client nor any of the other rights holders have availed themselves of these provisions. Why?"

ARIA had no comment. But a music industry source said: "(BigPond CEO) Justin Milne seems to have been saying: Why aren't record companies -- and even film companies and program makers -- suing BigPond customers under the Criminal Act? But it's a ridiculous scale of things to do, because it would clog up the court system needlessly with thousands of cases, with subpoenas flying everywhere, including to BigPond."

In recent weeks -- in the wake of the legal letters stand-off -- there has been at least one meeting, in Canberra, between ARIA and representatives of ISPs, led by BigPond and the industry's peak body, the Internet Industry of Australia.

That meeting ended in a stalemate, despite a "full and frank discussion". A second meeting is now in the pipeline.

The music industry source claimed the responsibility lies at the feet of ISPs: "They should shut this down at the ISP gate by a procedure of notices educating the customer, and then ultimately disconnecting for repeat offenders, just as is already occurring in France and in a trial in the UK right now."

But a Telstra spokesman defended BigPond's position. "We're not averse to finding a workable solution within the law. The music industry is relying on us to go through our records to identify alleged users, and then issue a notice to the person who had allegedly done this. But in this scenario, no one has been found guilty of anything.

"There's no judicial oversight of the process."