Aussie ISP Scans Downloads For Copyright Violation

Steve Nakhla writes: "According to this article, Excite@Home has begun snooping users' downloads in order to find copyrighted or pirated material. Violators have their access cut off. As an Excite@home user, this alarms me. What exactly is their definition of copyrighted? Doesn't the New York Times copyright their online articles? Can I not view them any more for fear of violating Excite's policies?"

Comments

This post is copyrighted.

[exi7]

Therefore, by reading it, you will be arrested. Expect your service to be terminated any second now.

(c) exi7, 2001. All rights reserved.

That means they'll pay people

[SpanishInquisition]

to watch the porn we download.

I want one of these jobs.

How is this different from a wiretap?

[KosovoYankee]

If Ma Bell was listening to my phone calls to see if I was committing a crime, I would simply get 2 cans and an extremely long string. There is no way this can be defended ethically: Because they provide you with a service, as a corporation, they can legally observe and log every detail of enery task you use the service to complete? While a nation's highways may belong to the federal government, they still need probable cause to stop you and "observe" what you have under the seat of your car, or in the trunk. This complete circumvention of probably cause is ludicrous. As stated above: Imagine if the phone company did this!

Re:How is this different from a wiretap?

[stevew]

First off - we're talking about Australia - they have a different take on things down there, and what may be legal here might not be there (and vice-versa.)

If I recall correctly, the 1996 Telecommunications Act made ISP's the equivalent of common-carriers, and they are exempt from worrying about content issues. The DMCA modified that to the extent that you can be tried and convicted by the ISP by them merely receiving a letter claiming you've done something wrong. The DMCA requires that they take action upon receipt of a letter. So - the ISP can only be held liable if they don't take action.

My solution is to send all the lawyers in the land to this little island off the coast of Africa where there are no scheduled boats or planes. This in and of it self should take care of congress since it's mostly lawyers. Think of what a wonderful world it could be! ;-)

Re:How is this different from a wiretap?

[JohnG]

Because they provide you with a service, as a corporation, they can legally observe and log every detail of enery task you use the service to complete?

Forgive my ignorance on this matter, but don't ISP's ALREADY log every task you complete? I could be wrong, but I would think they have records of what websites and newsgroups and such you've been to. This info is probably supposed to be kept private, but who knows nowadays.
Either way, it's just short hop from logging all your internet activity to MONITORING all your internet activity. It just surprises me, that of all the crimes they could go after, copyright infringement is the one they chose.
Looking at my past posts you'll see that I'm actually in defense of copyright more so that most slashdotters, but if they HAVE to violate our privacy, can't they do it to keep tabs on who downloads instructions for making nuclear bombs or who sends porn spam to potentially underage kids or something? Next to the wealth of dangerous and or illegal content on the web, copyright seems kinda harmless.

Re:How is this different from a wiretap?

[TekPolitik]

At first it looks like it may be an illegal wiretap. This is covered by the Telecommunications (Interception) Act 1989 (Cth). The difficulty lies in the interpretation of "Interception" in section 6 of that Act

Don't worry too much about subsection 2, none of those provisions apply even though it looks like they might. Subsection 1 is the problem, because it defines interception as "listening to or recording". Since the software downloads are not audio content, they're not "listening to" it, and it seems unlikely they're recording it. There's no reason to expect a court to decide that a checksum, CRC or other hash would constitute "recording", since "recording" implies substantially duplicating the content rather than merely identifying the content probabilistically.

It is unlikely that a court would hold that anything other than the reproduction of the content itself would constitute "recording".

IANALY,TINLA

Not all of @Home

[alanjstr]

The article says that this is Optus@Home, in Australia.

access cut off??

[canning]

Why don't the Aussie's just give the guilty parties the boot? I saw it on T.V. once, it seemed to work.

*FWOOSH*

[Psarchasm]

Hear that? Thats the sound of a giant toilet flushing your privacy down the drain (counter-clockwise).

woah, WOAH!!

[Telek]

Isn't this a MAJOR invasion of privacy? I can't remember exactly, but I seem to remember that ISPs were told they were NOT allowed to do that to modem users, as it violates several privacy issues. You're required to get a warrant prior to initiating any snooping whatsoever. Just like the Telephone, they can't do that!

And besides, HOW do you tell what's pirated and what's not, from random streams of data? If I download 2 movies at a time, it's going to seem like garbage (a raw stream that is). And HOW do they know that it's pirated? How can they distinguish a pirated movie from a non pirated one? Similarly with data or music, how can you tell? What are they going to do, scan for patterns that might match? Get someone to watch all movie streams and listen to all audio streams? Think about how hard it would be to figure that out. Or are they just going to scan what SITES you visit, and then ASSUME you're pirating? This is crazy!

Re:woah, WOAH!!

[Angst Badger]

Isn't this a MAJOR invasion of privacy? I can't remember exactly, but I seem to remember that ISPs were told they were NOT allowed to do that to modem users, as it violates several privacy issues. You're required to get a warrant prior to initiating any snooping whatsoever.

Yes, it's an invasion of privacy, but the question is whether it is an illegal invasion of privacy. If it was a government agency doing it, then yes, they'd need a warrant. For a private company to monitor what its customers are doing with company equipment is another matter altogether, and in many cases may be perfectly legal.

In some states, for example, you can legally record (your own) telephone calls without informing the party at the other end. Tennessee is one of those states. Maryland -- as Linda Tripp learned to her dismay -- is not.

Please bear in mind that there are extraordinary restraints on the actions of government agencies because they have extraordinary powers. Private citizens and private companies are under much lesser restraints. Moreover, analogies between telcos and ISPs (or between the telco branch of Big Fnarking Company and its ISP branch) are flawed because there are very specific laws governing common carriers, which telcos are, and few laws governing ISPs which are not, I repeat not, common carriers.

I'm not saying this is the way it should be, but in the absence of laws to the contrary, that's just how it is. Considering that ISPs can and have been held responsible for the actions of their customers in some instances, management may feel like they have to cover their butts by snooping. Of course, they may also just be tired of losing money on MP3-and-warez-sucking bandwidth hogs.

Download Linux, get your access taken away?

[Tin Weasil]

If they were really penalizing people for downloading all copyrighted materials, then you would get yanked for downloading GPL'd software, since it is, in fact, copyrighted.

Hey! Take a look at the bottom right corner of your page when you load slashdot! There is an OSDN copyright!

Really, I don't think any aussies who is doing anything legitimate (reading the NYTimes for example) has anything to worry about here.

I support any ISP for yanking connectivity of anyone for any reason. It's the ISPs right. Maybe they don't like you because you don't take baths (sorry RMS).

What is disturbing is that the ISP in question is actively monitoring it's user's online transactions and actions. That, in my OP is a violation of privacy.

Re:Isn't everything copyrighted?

[raresilk]

Yes, it's automatic via authorship in the USA, although I believe it formerly was not. I think the poster may be confusing the "copyright notice" (which is commonly placed on copyrighted material to clarify that it's being distributed subject to the author's copyright, rather than being released into the public domain) with the copyright itself. There is an additional USA procedure called "registration," which you need to do in order to bring a lawsuit on your copyright, and also registration is helpful in the dispute itself (e.g., it places a time stamp on your claim of authorship.) But the copyright itself exists even if you never register. There is one exception called the "work for hire" rule. If you author something as part of your employment duties for your employer (like software if you're a programmer) then the copyright automatically goes to your employer, unless you make special contractual arrangements. But if you write a song in spare time, that's still your copyright, because it's not what the company hired you to do.

Additional disclaimer - IAAL, but not a copyright specialist.

Re:Isn't everything copyrighted?

[$FFh]

Yes, any work you create is automatically copywrited unless you specifically put it in the public domain.
http://www.loc.gov/copyright/circs/circ1.html has more details.

IANAL, but i do play one on /.

Monitoring means assuming responsibility for usage

[hillct]

This was an issue circa 1996 when ISPs were wrestling with weather or not they are responsible for the actions of their users ans as such should attempt to keep track of activities on their network. I though the general concensus was that ISPs were not liable for the infringing activities of their users, unless they state that they will attempt to prevent such activity in socuments such as 'Acceptable Use Policies'. It sounds like Excite@Home screwed up their acceptable use policy and some content provider threatened to force them to make good on their statements that they would monitor the network for 'unacceptable uses'. Reharding the acceptable use policy, they say:

A spokesperson from Excite@Home said, "we are not watching every bit and byte, but we would randomly check from time to time."

The US AUP for their service describes illegal acticity but doesn't seem to describe how it will be observed. I was unable to locate the Austrelian policy. Presumably is't different in this regard. Also this statement, supports my theiry that some content provider called them on a badly written AUP that they have to make good on:

"I wouldn't call it policing, we're just trying to comply with the law and by highlighting the issue to customers, its putting us in a better position as acting as a responsible Netizen on the Internet," the spokesperson said.

I've written a couple AUPs in my day and one has to be vary careful about what one says will be done to keep track of user behavior, because any knowlege of illegal activity must be acted upon, whereas simply providing bandwidth does not usually create so many legal obsticles, no matter how many threatening letters you may get from the RIAA and other such organizations.

--CTH

The short version (IANAL)

[dkh2]

If it's been produced anytime since 1923 - somebody holds copyright on it.

The real issue that nobody is talking about is licensing. Yes, the New York Times and/or the original author holds copyright on all of that stuff. However, under the conditions for access to the NYT website they have granted you license to access that material online. They have not granted you license to download (read this as "save") and redistribute any of their IP.

It seems the real problem for Aussie ISPs is to identify the original source for anything served through them and to go after the account owners who allegedly violate copyright law.

Hey - Does this mean they are stealing a service?

[Phrogman]

If they intercept the images that a person downloads from a pay service - or the text articles or whathaveyou, does that mean they are illegally accessing that service?

I mean if I pay good money to access a porn^H^H^H^H^H pay news service and receive the benefit of that service, how can they legallly be allowed to (presumably) gain the same benefit from that service without paying for it?

Why, that ought to be illegal...