The challenges of content distribution for TelcosBrendan Coady | PartnerSonia Sharma | Senior Associate

CommsDay Summit 20 April 2015

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Current State of Play

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Current State of Play

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Ownership of Customer

Investment in infrastructure

Competition

IP Enforcement

Current state of play

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Role of ISPs in Preliminary Discovery

Applicants identified 4,762 unique IP addresses where film shared via BitTorrent = Copyright Infringement

First case in Aus where Pre Discovery used to identify individuals who have illegally uploaded /downloaded

ISPs required to give info about Account Holders even if Account Holders not infringing

Dallas Buyers Club (Peer-to-

Peer File Sharing)

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DBC (Peer-to-Peer File Sharing)

– Allegation of infringement against the Account Holders is that they uploaded ‘slivers’ of the movie as well as or rather than simply downloading

– Scope for damages potentially much broader due to uploading

Cost of single legitimate download ($10) vs contributing to others also getting access

– May depend on how the scope of purpose for preliminary discovery is interpreted (limited to just downloading or uploading as well?)

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Other issues raised in DBC

“different rights clashing” / Court to accommodate both as best they can

Purpose limited to 3 circumstances identifying, suing and negotiating re liability with individuals

Speculative invoicing (sending letters of demand for large sums)

Privacy (Telco Act and Privacy Act)

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DBC not a reason to deny preliminary discovery (incomplete draft / “soft law”)

Code adopted on 8 April 2015 by the Communications Alliance and submitted to the ACMA for registration under Telco Act

Code enforceable against any participant in the telecommunications industry once registered by ACMA

Copyright Notice Scheme Code 2015 (“Code”)

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The Code

3 Strikes and you are out

Rights Holders send Infringement Reports to ISPs covered by the scheme alleging infringement

ISP must attempt to match the IP address to an Account and send escalating series of Notices (Education, Warning and Final notices)

Rights Holders may request a Final Notice List setting out the IP Addresses (but not identifying information of Account Holders) who have received Final Notices which have not been set aside by the Adjudication Panel.

Account Holder may challenge Notices to independent Adjudication Panel

The Rights Holder may make an application for PD of the identity of the relevant Account Holder in the Federal Court. ISPs must comply with any orders of the Court.

Query relevant after DBC decision? Is the Code redundant?

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Copyright Amendment (Online Infringement) Bill

New Bill introduced to fight online

piracy via Web Blocking

Specific injunctive power directed at blocking infringing overseas sites RHs apply to FC to grant injunction to require CSPs to take “reasonable steps” to disable access to an online location

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1.CSP provides access to an online location outside Australia

2. Online location infringes or facilitates the infringement Text

3. Primary purpose is to infringe / facilitate

Net Neutrality

Net Neutrality

internet subscribers should get access to all (lawful) destinations on the internet without constraints being imposed by the ISP

RulesFCC in the US released new net neutrality rules. These rules were officially registered on 13 April, 2015

Challenge have already been challenged by a range of cable and broadband industry bodies

2nd Attempt Follows previous attempt by the FCC to mandate an open internet which ended unsuccessfully with litigation with Verizon in 2010

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What is the rationale – some (slightly paraphrased) quotes

Internet openness drives a virtuous cycle in which innovations at the edges of the network enhance consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new innovations at the edge

broadband providers hold all the tools necessary to deceive consumers, degrade content, or disfavour the content they don’t like

Can block access, can target competitors (including competitors to their own video services), can extract unfair tolls

When a broadband provider acts as a gatekeeper, it actually chokes consumer demand for the very broadband product it can supply

Emerging internet trends since 2010 give us more, not less, cause for concern about such threats

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No blocking – must not block lawful content, applications, services or non-harmful devices*

No throttling - must not impair or degrade lawful internet traffic*

No paid prioritisation – must not manage

network to directly or indirectly favour traffic

*subject to reasonable network management (FCC notes that in many cases unacceptable commercial practices are presented as reasonable network management )

New Net Neutrality

Rules – Clear, Bright-Line

Rules

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Other elements

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– Enhanced Transparency - must publicly disclose accurate information regarding network management practices, performance and commercial terms

– Applies to both fixed and mobile broadband internet access

– Does not include enterprise services, VPN services, hosting or data storage

– Does not include interconnection (including CDN) – although commercial arrangements may be dealt with on a case by case basis

The challenges of content distribution for Telcos

Brendan Coady | Partner Direct 61 2 9291 6258 brendan.coady@maddocks.com.au

Sonia Sharma | Senior Associate Direct 61 2 9291 6143 sonia.sharma@maddocks.com.au

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