🚀 go-pugleaf

The following is the "minutes" of the INTIAA-sponsored
meeting of Canberra ISPs to discuss the APRA ambit claim.
These notes have been sent to the people noted below, to
INTIAA, to the link mailing list and to the inet-issues 
mailing list. It will also appear in aus.org.efa and 
aus.net.policy.

Regards, K.

PS: If you have no idea what I'm talking about below, hit the
INTIAA home page and look at the APRA items thereon.


INTIAA-sponsored meeting of ACT ISPs/IAPs
  notes by Karl Auer, PC Users Group (ACT)/The Internet Project
/////////////////////////////////////////////////////////////////
Meeting held at Phillips Fox (ACT), 16:00 Friday 21 June 1996.
Hosted by Brian O'Callaghan and Dennis Pearce of Phillips Fox.

Present were:
   Chris Annett (Conxion)
   Karl Auer (PCUG/The Internet Project)
   Craig Gibson (InterACT)
   Kim Holburn (University of Canberra)
   Bruce McLeod (Spirit Networks)
   Gavan Murphy (APANA)
   Lis Shelley (CSIRO)
   Richard Siggs (Spirit Networks)
   Nick Smith (Departnent of Communication and the Arts).

Apologies were received from:
   Alan Auzins (NetInfo)
   Adam Burns (Pegasus)
   Max and Tanya Kiermaier (Starway Canberra)
   Harry Konstantinou (Dynamite)
   Paul McConnell (APANA)
   Tom Minchin (IACOM)
   Bob Thompson (University of Canberra)
   Adam Todd (Nettech)

Disclaimer:
   The following notes are a hurried record of some of the 
   things I thought were worth writing down :-) Corrections and
   additional notes would be most welcome.


Brian O'Callaghan opened the meeting with the statement "In unity 
there is strength" :-)  He then provided a few notes on APRA and
the current Telstra vs APRA case regarding recorded music being 
piped to callers on behalf of certain Telstra customers. Apparently
the case was at first won by Telstra, then lost on appeal and is 
now being contested in the High Court. Various aspects of this 
case were referred to throughout the meeting; I confess the details 
never quite gelled for me. Can anyone give an online reference to 
this case?

There was some discussion of what ISPs do. The distinction was 
drawn between the material actually stored at an ISP's site and that
stored elsewhere and accessed *via* the ISP's site. A further
distinction was drawn between the material stored at an ISP's site
by and for the ISP itself and material stored there by users and 
advertisers. It was noted that the level of effective control wielded
by the ISP over the data and access to it varied widely between these.

The concept of "publication" was discussed. Dennis Pearce made the 
point that (re copyright) authorising an infringing act was itself
an infringing act. Failing to exercise appropriate control could be 
construed as authority if explicit steps were not taken. The 
similarity with public photocopying machines in educational 
institutions was drawn.

Others present noted that while the sole purpose of a photocopier 
was to copy works, the facilities of the average ISP could be (and 
were) used for a vast range of activities, only some of which might 
infringe copyright. The point was also made that most material on 
the Internet was placed there by the copyright holder, with 
awareness of the nature of the Internet and the purposes to which 
the material could expect to be put - e.g., downloaded for display
on a remote computer.

Those present were concerned at the poorly defined terms in the 
APRA demand - what constitutes "transmission"? What exactly is a 
"subscriber"? Given the "upstream/downstream" architecture of the 
Internet, the demand would seem to seek to double-dip by hitting 
every provider along the path of a transmitted work.

The idea of the ISP as a carrier (like Australia Post of Telstra)
was raised, and the suggestion made that some protection should be
offered as a "common carrier". This point was not really explored,
except to note that currently ISPs do NOT have that protection.

Nick Smith from DOCA noted that a draft Copyright Act Amendment
Bill was in the works, which would probably invalidate APRA's claim
by making the aspect of control a determining factor in 
responsibility for payment of copyright-related fees. Nick also
pointed out that although we might regard some Internet activities
as "broadcasts" the law made a clear distinction between transmission
over a physical medium ("cable diffusion") and other methods such as TV 
or radio ("broadcast"). Thus the issue under present law was 
restricted to "cable diffusion". Apparently there is a useful summary
of current copyright collection systems on the DOCA Web site (see below).

It was noted that the protection of an as-yet-still-draft piece of 
legislation was dubious at best, and that the legislation had some flaws
of its own! However, it was a matter to bear in mind.

Lis Shelley asked whether the demand being made was really a diffusion
matter, or whether it was more akin to the fee APRA collects on the 
sale of blank tapes. Brian O'Callaghan noted that the present demand
seemed to be firmly rooted in the issue of diffusion, but that the 
grounds could change.

The question was posed as to whether INTIAA (or anyone) could launch a 
"preemptive strike" as it were, taking APRA to court and thus to some
extent taking the battle to them. Dennis Pearce noted that the usual
way such a tactic proceeded was that the two parties got together and 
agreed on a suitable "target", the target obligingly commits whatever 
breach is at issue, the claimant obligingly sues and the two then go
for it :-) The point was made that it was far better to have some 
control over matters than to end up getting picked off one by one. It 
makes economic sense for most organisations that are actually sued to 
settle, rather than fight.

Brian O'Callaghan summarised the position from the legal viewpoint as:
   - there seem to be serious legal flaws in the APRA claim
   - more work is needed to properly establish the grounds (if any)
     on which the claim could be contested
   - don't pay! Wait for legal advice to be forthcoming
   - much will probably hinge on the question "what is a subscriber?"

Participants were then asked how they felt about a) forming some kind
of joint effort or group and b) how they felt about fighting the case.
The point was made that this would all depend on cost! There was some
discussion about the exposure that those present were facing - it 
ranged from about ten dollars :-) to a very serious amount indeed for
the educational institutions, if all their employees and students were 
found to be "subscribers" in that the institutions provided them with 
access to the Internet.

The Phillips Fox representatives were asked whether Phillips Fox was
taking on the case pro bono. The answer was "not at this stage". The
association of Phillips Fox with INTIAA is a friendly one, with 
partners actively involved in its management.

Summary:

   There was no real consensus as to action, as too little is known
   at this stage about the likely legal validity of APRA's claims.

   However, the gist seemed to be

      - a feeling that APRA's claims are not well-founded
      - a desire for more information before committing to action
      - strong but unfocussed support for a joint effort
      - cautious support for funding a joint legal approach to APRA
      - results of INTIAA activity will be watched with interest
      - monetary (or other concrete support) very likely

The process of forming a local body will continue as a separate matter.

Resources mentioned/recommended:

   EFA newsgroup: aus.org.efa
   Net newsgroup: aus.net.policy
   APRA home page: http://www.apra.com.au
   INTIAA home page: http://www.intiaa.asn.au
   DOCA home page: http://www.dca.gov.au
      (see especially http://www.dca.gov.au/pubs/simpson/simpson1.htm)
   DOCA IP Task Force page: http://www.dca.gov.au/iptf.html
   The "inet-issues" mailing list
      (email majordomo@mail.aone.net.au
       leave subject line blank
       place "subscribe inet-issues" in the body of the message)
   The "link" mailing list
      (email majordomo@online.anu.edu.au
       leave subject line blank
       place "subscribe link" in the body of the message)
   Link mailing list archive: http://online.anu.edu.au/mail-archives/link/

   Each participant in the meeting received a copy of the APRA letter
   shamelessly stolen from the INTIAA home page :-)

   INTIAA had a few copies of a backgrounder for us; sadly they seemed 
   to be in hard copy only. I hope that the Phillips Fox document
   "Music on the Internet" will be made available soon from the INTIAA 
   home page.

Finally:

   The participants in this meeting wish to most sincerely thank Brian 
   O'Callaghan and Dennis Pearce of Phillips Fox for the time they spent 
   with us, for their considered professional assistance and for donating
   coffee, biscuits and boardroom. They would also like to thank INTIAA 
   for facilitating the meeting and helping to provide focus on this 
   important issue.

<end>


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Karl Auer                                +61-6-2494627 (bh)
kauer@pcug.org.au                        +61-6-2486607 (ah)
Home page: http://www.pcug.org.au/~kauer/