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

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!

*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.

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.