As you will all be aware the work towards Data Retention is a real challenge for our industry. With many of our members required to submit a Data Retention Implementation Plan (DRIP) by August 13 there are still a number of questions to be answered.

The Western Australian Internet Association (Inc.) (WAIA) has the opportunity to present an information session regarding the new data retention legislation with Alan Arnott of Arnotts Technology Lawyers.

Given the approaching deadline for submissions of DRIPs we would like to evaluate the benefit of hosting an exclusive event for our members. The event would likely take place on the evening of Monday 3rd August.

Click here to register your interest in attending by noon Thursday AWST.

A decision regarding the feasibility of the event will be made on Thursday afternoon.

The Mandatory Data Retention Bill has been the topic of many conversations in our industry over the past months, with the Bill being passed by both houses of Parliament on 26 March 2015.

The Western Australian Internet Association (WAIA) has been in communication with a number of industry groups to keep informed on this issue. We are currently working with the groups such as the Internet Society of Australia, who have been invited to join the Data Retention Implementation Plan (DRIP) Working Group along which includes organisations such as Optus and Telstra.

The DRIP Working Group are currently working towards a series of practical resources and guidelines. Part of this involves compiling questions which will inform an FAQ resource.

Such questions that have already been suggested include
• Am I subject to the legislation that requires me to collect metadata?
• What metadata must I collect?
• Do I have to segregate metadata that is not required to be collected under the legislation?
• Where can I /must I store the metadata?
• What process is in place for authorities to access metadata?
• What must I put in my metadata Implementation Plan?
• What exemptions are required?

This is where WAIA members can help. What information would you like answered in a FAQ or resources addressing Metadata Retention?

Please email your contributions and questions to admin@waia.asn.au. These will be fed into the working group and will assist in the production of resources for the industry.

There are no silly questions – all concerns on this issue are legitimate – so please submit your thoughts so that robust resources can be made.

By Alan Arnott and Michael Langenheim

Alan Arnott is a Technology Lawyer with Arnotts Technology Lawyers and Michael Langenheim is a Barrister at 4th Floor Selborne Chambers.

Perram J of the Federal Court has handed down his decision in the preliminary discovery application made by the owners of copyright in the film the Dallas Buyers Club against six ISPs (the biggest being iiNet): Dallas Buyers Club v iiNet [2015] FCA 317.

The case was hard fought and in the end it was a victory for the copyright owners, although some commentators (including iiNet’s CEO) have noted that the decision does contain some good news in the form of Court oversight of the letters to be sent to ISP customers.

The ISPs have 28 days from the day of the judgment (7 April 2015) to appeal but there has been no public announcement of any intention to do so at this point.

The decision

The applicants claimed that they had identified 4,726 IP addresses that shared their film using BitTorrent, they had evidence that the IP addresses were supplied by each of the ISPs and they believed the ISPs could identify the relevant account holders.

The ISPs attempted to resist the application on many different bases. One argument made was that the evidence put forward to identify the infringing IP addresses was insufficient.

The ISPs also argued that, as a matter of discretion, the Court should not order preliminary discovery because, among other things, there was evidence which suggested that the applicants were going to engage in the practice of ‘speculative invoicing’, the ISPs were subject to privacy obligations with respect to their customers which should be respected and the Federal government had required the industry to formulate an industry code dealing with the issue of internet piracy and the Court should wait until that code was in place.

The Federal Court Rules 2011 (Federal Court Rules) provide that the Federal Court has the discretion to order a third party to give discovery to a prospective applicant of documents in their control relating to a prospective respondent’s description (i.e. name and address). To enliven the discretion, the prospective applicant must satisfy the Court that it may have a right to obtain relief against a prospective respondent, it is unable to ascertain the description of the prospective respondent and the third party knows (or is likely to know) the prospective respondent’s description, or the third party has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description. In this case, the prospective respondents are the ISP customers who have allegedly infringed copyright in the Dallas Buyers Club.

Based on the evidence provided by the copyright owners, Perram J concluded that the pre-conditions for an order for preliminary discovery had been met. He also rejected each of the arguments put forward by the ISPs against the Court exercising its discretion to order preliminary discovery.

However, the Court accepted that the applicants had used ‘speculative invoicing’ in the past in the United States and noted that the practise could be potentially unlawful in Australia as misleading and deceptive conduct or unconscionable conduct. To address these concerns, Perram J decided to impose conditions on the applicants in order to prevent ‘speculative invoicing’.

His Honour also noted that while the law protects the privacy of individuals it also protects the rights of copyright owners and that in situations where different rights clash it is usual for courts to try and accommodate both rights as best they can. As a result, Perram J imposed constraints on the way the disclosed information can be used, i.e only for the purposes of identifying end-users using BitTorrent to download the film, suing end-users for infringement and negotiating with end-uses regarding their liability for infringement.

The Court noted that industry codes have no effect until registered and even when registered they would have no direct effect until the Australian Communications and Media Authority (ACMA) was satisfied it had been breached and issued a direction to comply. In addition, the Communications Alliance Code C653:2015 Copyright Notice Scheme (Code) was at the time the judgement was handed down only in draft form with no real chance of it coming into force in the next few months. In these circumstances, Perram J concluded that the Code provided no reason to decline the relief sought by the applicants.

The impact on ISPs

There has been a lot of press about the decision and its impact on the customers of ISPs and the workarounds available including the use of VPNs and P2P software other than BitTorrent.

Any impact on the customers of ISPs will of course have a related impact on ISPs themselves.

ISPs are still bound by the requirements set out in the Telecommunications Act 1997 (Telco Act) and the Privacy Act 1988 (Privacy Act) not to disclose the personal information of their customers, the contents of communications and certain other information.

If a copyright owner approaches an ISP requesting customer details the ISP should obtain legal advice before agreeing to make any disclosure. In the absence of a Court order, disclosure could place an ISP in breach of the Telco Act and/or the Privacy Act.

The Code (submitted to the ACMA on 8 April 2015 and likely to be registered by the ACMA within the next few months) creates a copyright notice scheme where certain residential fixed internet users who are alleged to have infringed copyright online will receive a series of infringement notices designed to curb their behaviour and steer them towards lawful sources of content. Importantly, the Code does not apply to all ISPs.

ISPs who receive requests from copyright owners under the Code should seek legal advice in order to ensure that they comply with their legal obligations under the Code, and of course, their legal obligations owed in favour of customers.

IX Australia is excited to announce the provisioning of the ABC to the Sydney peering exchange, NSW-IX.

“Bringing the ABC to our network, with its popular content platform iView, is a great benefit to our members,” said WAIA President Pawel Mrugalski.

“We are dedicated to our Sydney peers by bringing new services and content onto the network fabric.”

“IX Australia has become a key Internet exchange within NSW which has a focused on delivering a sustained quality product and member network,” said Mrugalski.

Since launching in New South Wales the IX Australia network has enjoyed considerable growth, now with more than 90 unique peers on the network. As a member driven association WAIA continues to grow the IX Australia network with our commitment to members needs in mind.

The great and continued support from our members has seen the Western Australian Internet Association grow to now have six peering fabrics with multiple peering point
POPs throughout the IX Australia network across Australia, and continue to explore further opportunities to extend the network.

ISPs offering unmetered access to ABC and ABC iView should contact IX Australia Support onpeering@ix.asn.au or to ABC to arrange for this traffic to be delivered via the ABC’s new peering port.

For further information on peering on NSW-IX or any of the IX-Australia peering points please contact IX-Australia Technical Manager, Joe Wooller, on 1300 653 132 or peering@ix.asn.au or visit www.ix.asn.au.

By Alan Arnott and Michael Langenheim
Alan Arnott is a Technology Lawyer with Arnotts Technology Lawyers and Michael Langenheim is a Barrister at 4th Floor Selborne Chambers.

Dallas Buyers Club LLC (DBC) is the copyright owner or an entity with the right to distribute in Australia the Oscar winning film Dallas Buyers Club, which was released in the US in late 2013. DBC has recently commenced court proceedings in Australia. The case is of importance to all Australian ISPs and its outcome should be of interest to all WAIA members.

Australian ISPs have refused to hand over subscriber details
DBC has filed lawsuits in the US alleging copyright infringement for downloads of the film over the internet using BitTorrent. DBC is now also seeking the names and addresses of customers of Australian ISPs associated with the IP addresses that DBC says have been used to illegally download the film.
It is understood that DBC has used a software tracking system (referred to as the Mavericks System) that tracks the download of the film over BitTorrent to a particular IP address at a specified date and time.
The Australian ISPs have so far refused to provide this information to DBC.

Preliminary Discovery
In response to the refusal by Australian ISPs to supply customer details, DBC has sought to obtain the information by way of a court order through a process known as preliminary discovery. Preliminary discovery can be used to identify a potential defendant.
DBC has made its preliminary discovery application in the Federal Court of Australia against iiNet, Adam Internet, Amnet Broadband, Dodo, Internode and Wideband Networks.
Telstra and Optus are both notably absent.
The Federal Court Rules 2011 (FCR) provide that the Federal Court may order (r7.22(2)(c) of the FCR):
• a 3rd party to give discovery to a prospective applicant (a person who reasonably believes they have a right to obtain relief against a prospective respondent);
• of all documents that are or have been in the 3rd party’s control;
• relating to the prospective respondent’s description (i.e name and address).
To obtain an order for preliminary discovery against an ISP, DBC must satisfy the Federal Court that (r7.22(1) of the FCR):
• there may be a right for DBC to obtain relief against a prospective respondent (i.e a person who unlawfully downloaded the film);
• DBC is unable to ascertain the description of the prospective respondent; and
• the ISP knows or is likely to know the prospective respondent’s description or has or is likely to have control of a document that would help ascertain the prospective respondent’s description.
The Court will generally only grant an order for preliminary discovery if it is in the interests of justice to do so. Earlier cases indicate that the court will consider the prospects of DBC’s success in any proceedings brought against alleged copyright infringers. DBC’s claim must be more than a claim worth investigating, it must have some prospects of succeeding: Allphones Retail Pty Ltd v ACCC (2009) 82 IPR 121.
It has been alleged that DBC is seeking preliminary discovery against ISPs simply to get the names and addresses of people in order to send them an invoice seeking significant sums for an alleged infringement (a practice known as “speculative invoicing”).
If this assertion is substantiated then it could weigh against the Federal Court’s exercise of its discretion to make an order for preliminary discovery.

Next steps
The application for preliminary discovery has been set down for hearing on 17 – 18 February 2015.
If DBC is successful then it is likely to initiate preliminary discovery applications against other ISPs. In addition, the case could also open the floodgates for other copyright owners to initiate similar discovery applications in Australia.

Arnotts Technology Lawyers specialises in providing legal advice and representation to ISPs and tech companies throughout Australia. For assistance with your legal requirements contact Alan Arnott, Technology Lawyer on 02 8238 6989 or alan@arnotts.net.au

The IX Australia network is pleased to launch a new peering service in New Zealand.

Auckland IX (ALK-IX) is a carrier-neutral peering exchange service, initially available within The Data Centre at 220 Queen St Auckland.

“The launch of ALK-IX is a natural expansion for the services we offer,” said IX-Australia Technical Manager, Joe Wooller. “We are currently offering free trials on this service for six months and encourage all interested peers to connect.”

“As a member based not for profit association we will be looking at expanding these services to meet the needs of our members, and will look for additional DCs in the coming months,” said WAIA President Pawel Mrugalski.

“WAIA has a strong proven track record within the industry and over sixteen years experience of operating Internet Exchanges. We are very pleased to be bringing our services to New Zealand.”

A full list of IX-Australia participants is available at https://www.waia.asn.au/ix/participants.

For further information on peering on AKL-IX, or to commence a trial please email peering@akl-ix.nz

For further information on any of the IX-Australia peering points please contact IX Australia Technical Manager, Joe Wooller, on 1300 653 132 or peering@ix.asn.au or visit www.ix.asn.au.

The IX Australia network enjoys continued growth with the successful launch of new POPs in Queensland and the Australian Capital Territory.

“The IX Australia network has launched ACT-IX, having taken over the operation of TransIX in the iiNet Data Centre, our first peering point in the nation’s capital,” said IX-Australia Technical Manager, Joe Wooller. “This service is free to any of our members who are currently peering on another fabric, similar to our peering point in South Australia (SA-IX).”

“We have also extended our reach in Queensland launching a new POP at Hostnetworks, Brandi Street Eight Mile Plains. This new site provides increased peering options for our members,” said IX-Australia Technical Manager, Joe Wooller.

“The growth of the IX Australia network is a great reflection on the member driven service we provide,” said WAIA President Pawel Mrugalski. “We constantly strive to provide new services for our member base, and we will continue to listen to our member base to facilitate more POPs and services where they are needed.”

A full list of IX-Australia participants is available at https://www.waia.asn.au/ix/participants.

For further information on peering from ACT-IX or any of the IX-Australia peering points please contact IX-Australia Technical Manager, Joe Wooller, on 1300 653 132 or peering@ix.asn.au or visit www.ix.asn.au.

It was great to catch up with our members at the 2014 WAIA AGM in September. WAIA was pleased to once again stream the AGM online, with special thanks to the Perth Linux Users Group (PLUG).

WAIA President, Pawel Mrugalski reported on WAIA’s developments over the past year, including strong growth for IX Australia, the launch of the WAIA Members Portal and improvements to our peering services through upgrading to the Extreme Network. You can download a copy of the President’s Report here.

We would like to welcome Tom Berryman and David Brown, our newest members of the WAIA Executive Committee. See our full Executive Committee information here.

The WAIA Executive Committee would also like to extend a warm thank you to Richard Keeves and Brenton Hewitt for their service on the Executive.

For those that are not able to attended in person we are delighted to have PLUG WA assisting us with web-streaming our event.

Watch the AGM live from 6:00pm AWST at http://icecast.plug.org.au:8000/

If you encounter any problems, we recommend installing VLC from http://www.videolan.org/ to watch it. Choose the Media -> Open Network Stream menu option, the URL to watch it will behttp://icecast.plug.org.au:8000/WAIA-live.ogg

We will provide further updates on the web-stream via WAIA Facebook and WAIA Twitter – so watch our social media for live updates.

We look forward to seeing you in person or online.

Join us for an informative session to learn about the IX Australia “Hosted Connection” service into Amazon Web Services.

Presenters
James Bromberger, Solution Architect at Amazon Web Services
Pawel Mrugralski, WAIA President

Question Time
Joe Wooller, Network Manager, IX Australia

Tuesday 15th April 2014
Arrive from 5.45pm for a 6.00pm start

Upstairs, Rigby’s Bar & Bistro
Forrest Centre, 221 St Georges Terrace Perth WA 6000

Food and beverages provided.
This is a FREE event – please RSVP by visiting hostedconnection.splashthat.com

We look forward to seeing you there!