Australian ISP Argues For BitTorrent Users

taucross writes "Australian ISP iiNet is making a very bold move. They are asking the court to accept that essentially, BitTorrent cannot be used to distribute pirated content because a packet does not represent a substantial portion of the infringing material. They are also hedging their bets purely on the strength of the movie studios' 'forensic' evidence. This ruling will go straight to the heart of Australia's copyright law. At last, an ISP willing to stand up for its customers! Let's hope we have a technically-informed judge."

Comments

Wow

[niner69]

An ISP grew a pair?

Re:Wow

[Tubal-Cain]

I think they may have come to the conclusion that the high bandwidth cost of file sharing is less expensive and time consuming than being responsible for their customers' copyright infringement.

Re:Wow

[Jurily]

I think they may have come to the conclusion that the high bandwidth cost of file sharing is less expensive and time consuming than being responsible for their customers' copyright infringement.

Or they see a niche market among those who are on the wrong end of the witch hunt.

"We protect our users" could be a pretty good slogan.

Re:Wow

[erikina]

Nope. It's just good business sense. Here (in Australia) we pay for our usage. I'm on a 20GB/month plan, while someone like my mum is on a 500MB/month plan.

The "heavier" the user, the better the customer. In other parts of world, you have the opposite problem when the "light" users are the most profitable customers.

Re:Wow

[grim-one]

In Australia we have quotas on our internet plans, users who download large volumes of data pay a premium for it (up to AU$140 for 140GB per month). iiNet is defending its interests and revenue stream - they don't want to see quota downgrades en-masse from people abandoning file-sharing.

Re:Wow

[commodore64_love]

I don't know iiNet's motive, but I think their reasoning is falacious.

If I copy 1 page of a textbook today, 1 page the next day, and so on..... its true each "packet" could be considered fair use, but I eventually end-up with a whole book by the end of the year. So it IS copyright infringement. The same is true with torrents.

Terrible news!

[Anonymous Coward]

One packet per customer, sorry folks.

Re:Terrible news!

[SCPRedMage]

Wow, that's not even enough to get through DHCP...

SO if I

[geekoid]

Bought a book, and then started handing out copies I make of the book one page at a time It is not copyright infringement?

Yeah, that will fly~

Using it to counter this specific item i.e. forensic evidence, might.

Re:SO if I

[dgatwood]

No, but if you always handed out the first page, it might. You'd probably need to show some reasonable purpose for doing so, though, e.g. scholarly research and criticism. I don't think BitTorrent will pass even such a low bar. And the fact that you'd be handing out every page, merely handing out different ones to different people, makes this defense prima facie laughable, IMHO. Hope they have some more subtle arguments that I'm not seeing. Otherwise, that seems like a really weak defense to me.

Re:SO if I

[Anonymous Coward]

I think the argument that they're making here is that you're handing out single letters at a time, to follow the book analogy.

Except that you're not handing out an entire book (unless you're the original seed). You're handing out some of the letters, more or less randomly - just in a framework that they can all be put together in.

In all fairness, the argument is fairly sound. The individual seeds are only accessories to copyright infringement, and someone who only downloads and doesn't seed back is entirely innocent of it.

Re:SO if I

[master5o1]

Or what about this:

That 30 second preview on Wikipedia. Say there are websites that have this 30 second preview at different parts of the song...you find one at the beginning, one that is 30 seconds into the song, etc..until you have the entire song.

Remember, you've just been using the 30 second preview from various websites, absolutely `legal`...or is it? (oh yeah. 30 seconds was the time it took me to think of this crappy post)

Re:SO if I

[Volda]

A better apology would be say 100 people bought the same book then each person copies a few pages and gives it to other people who are then able to form the full book after collecting the pieces from the other 100 people. I think what they are trying to prove is that a individual that uses bit torrent is only giving another person a part of the info they need to complete a file. For them to be able to prosecute they would have to prosecute everyone who is sharing the copies. All or none basically. I believe fair use laws are being used to somewhat protect bit torrent users in this case. It may work for a while but i have no doubt that the politicians will start to make new laws specifying that even a part of a file is equal to the whole file.

Re:SO if I

[HTH NE1]

someone who only downloads and doesn't seed back is entirely innocent of [copyright infringement].

Well, except for that pesky little thing of being in receipt of infringing goods.

Re:SO if I

[atari2600]

No if you bought a book and then handed out each word in the book, then it's not copyright infringement. Like if you print out this post and pass out each character of the English alphabet, as much as I will hate you, I cannot sue you *and* win.

Re:SO if I

[Skye16]

I think I had that quest in WoW

Re:SO if I

[iron-kurton]

My head just exploded because I can only think in terms of car analogies.

Re:SO if I

[Kjella]

I'm not aware that this is actually against (U.S.) law.

According to the grokster case, the uploader is violating the distribution right and the downloader the reproduction right by fixing the transitory data stream to a medium on his computer. Otherwise it wouldn't be illegal to film in a cinema, it could be against the cinema's rules but if filming it didn't involve any of the copyright holder's exclusive rights it couldn't be copyright infringement either.

Re:SO if I

[McGiraf]

apology accepted

Re:SO if I

[Anonymous Coward]

someone who only downloads and doesn't seed back is entirely innocent

except said someone is kind of a douchebag

Re:SO if I

[HTH NE1]

Well, except for that pesky little thing of being in receipt of infringing goods.

I'm not aware that this is actually against (U.S.) law.

Its usually only used against pawn shops that buy hot goods and don't finger(print) their customers, or against someone who buys something that "fell off the back of a truck". They don't tend to prosecute those duped into buying the merchandise (ignorance of the crime isn't ignorance of the law), but neither do they remunerate the duped for relinquishing the evidence either--that would be a civil matter between customer and illegal vendor.

Re:SO if I

[EdIII]

Well, except for that pesky little thing of being in receipt of infringing goods.

You can't be in receipt of infringing goods. Goods also cannot be infringed upon in the first place as they are physical. I know it's nitpicking, but it's important as you can never steal intellectual property. This is on the internet, so the distribution is digital over wires and not transferred on a physical medium which can be called a "good" and actually stolen.

The person sending the data infringes upon the copyrights by distributing without permission. The person receiving it only starts to infringe upon the copyrights when they first begin to use it without permission, or distribute it themselves in it's entirety.

The whole argument is weak bullshit of course. Bittorrent can be used for piracy just as much as it can be used to distribute free information. Where it is weak is claiming that only one piece at a time is sent, which is not infringing in of itself (The letter A is not copyrighted), but failing to recognize the ultimate purpose is to receive 100% of the data. Not 70, 80, or 90. 100%.

The only person that is not guilty of copyright violation at all, are the assholes that do not seed back with a 1:1 ratio. In that case, they never actually sent the entire file. However, Bittorrent would have failed a long time ago if that happened everywhere.

Ultimately, Bittorrent can result in the distribution of pirated data unless you interrupt the process to prevent it from reaching its intended, and designed goal.

The only way they could make that work is if you had A,B,C each having 33.3% of the data and participating in the torrent. They don't ever download more than what they have, and none of their recipients ever give back 100%. That is NOT the way Bittorrent works and I think the judge will understand that at least. It makes no sense.

Re:SO if I

[nurb432]

Some of us really don't care either way and will continue to do as we please with the digital copy that in reality doesn't effect the original in any way.

Re:SO if I

[Zerth]

Actually, for a while I ran a modded bittornado client that deliberately would never upload more than 10% of the torrent to any one IP for expressly this purpose. It also lied to the tracker about my ratio for additional deniability.

Not that I thought I'd get away with it, but I figured that if I was that screwed, it'd be amusing to have my lawyer whip out the client source in court showing that I couldn't have supplied anyone with a complete copy, that my actual transfer was substantially different than what the tracker showed, and thus any evidence they had could not show a complete infringement.

Then I got a real job.

Re:SO if I

[taucross]

It unfortunately does seem very weak. But, at least they're not playing ball with the plantiffs. By not even admitting that their users download illegal content, they've made it quite clear they won't be co-operating with the studios.

Can't say I blame them. I'm of the belief that the "internet is imaginary" - I don't think anyone should be prosecuted for anything on it. Unpopular school of thought I know, you needn't inform me. :)

Lets hope they win, but how is important too

[ancientt]

Cobden for iiNet - "You aren't the boss of me"
Bannon for Studios - "We told them to stop letting people do bad things, and they didn't do what we told them!"

Apparently there is speculation over whether iiNet will try to argue that packets of data are not a substantial portion of a work, or maybe that the one to one nature of bittorrent isn't the same as a public dissemination, but personally I hope that they establish first that the studios don't have a right to just shut people down by accusation and then argue the technicalities that might get them off. I think that the arguments that it isn't piracy are much weaker than the arguments that the Studio's lawyers do not representive a duely appointed government representative.

Shut Down All Possible Ways To Break Laws...

[quangdog]

Perhaps I'm misinformed, but is there any evidence to suggest that BitTorrent is used exclusively to distribute copyrighted materials? It seems to me that the argument against it is that it *may* be used to distribute copyrighted materials. If this is truly the case, then I guess we had better go ahead and unplug the whole internet. It was fun while it lasted, but it *may* be used for evil, so while I agr*#&$@@ NO CARRIER

Re:Shut Down All Possible Ways To Break Laws...

[mrsquid0]

The first guns were made for military use. The earliest recorded military use of a firearm (that I know of) is 1327. Hunting came much later when firearms became small enough, and reliable enough, that they did not need several people to use them, and to protect the shooter while he was using the gun.

Re:Shut Down All Possible Ways To Break Laws...

[whiledo]

Wikipedia puts the oldest surviving gun at 1288 in China. Oldest depiction go back to the 1100s (again, China). These were also all military weapons.

It really only makes sense that guns came from a military. Until fairly recently in history, guns have been quite unreliable. And I don't just mean they were likely to miss your target or not fire. I mean they were likely to do things like explode and blow your hand off. This really only make sense if the user of the weapon is somewhat expendable. But they were also likely to miss, so again they only make sense in terms of a number of gun users firing at a number of targets.

None of this in any way makes a gun very practical for typical hunting. I have no idea where the OP got that from.

Re:Shut Down All Possible Ways To Break Laws...

[Anonymous Coward]

As far as I read it, the problem wasn't with bittorrent being allowed or not, but with iiNet receiving information from copyright holders about copyright infringements happening, and then doing nothing to stop it from happening (in turn condoning the actions of its customers).

The movies mob needs to prove it gave enough information and proof it was happening (and possibly show that iiNet was then allowing its customers to perform illegal actions), and iiNet has to prove that with the information given it was insufficient to determine there was a wrong doing.

The way in which iiNet are arguing their side is that even when presented with lists of people downloading packets of copyrighted material, there is no way they could know they are definitely making a copyright infringement as the packets do not constitute individually any illegal material.

Objectivity

[Toonol]

Just because someone is arguing a side that most of us support, doesn't mean that their argument isn't ridiculous. We need to keep our intellectual honesty about us. Taking their reasoning, it could be argued the TCP/IP never violates copyright; that a file broken out on disk clusters never violates copyright; and so on.

If you're sharing a copyrighted file via torrent without permission, I think you indisputably are violating copyright law. Perhaps copyright law is poorly conceived... I certainly think it is. However, I don't think arguing through silly loopholes is going to help the core problem. The law needs reformed.

Re:Objectivity

[Anonymous Coward]

There is a big difference here that you are missing .....

They are not arguing for the individual users. They are arguing for Bittorrent.

As an analogy, you can use Xerox copy machines to photocopy an entire book. The RIAA, MPAA, and so forth have in effect been going after Xerox for copyright infringement. The single act of copying a single page does not constitute copyright infringement while copying an entire book does.

Thus the copyright infringement occurs through the actions of the user not the actions of the company who built the copy machine or the software used to transmit a file. Similarly, Ford, Chevy, Ferrari, Porsche, are not sued when someone speeds, crashes and hurts someone. The driver is at fault not the auto companies.

Won't work.

[Richard_at_work]

Courts hate people trying to be 'smart' infront of them with arguments, and this is exactly what iiNet is doing. Why limit this to Bittorrent? If breaking the item in question down into individual packets eliminates the copyright concern, then surely just transferring the file by any means digitally will do the same - I can't think of a single protocol which doesn't use packets to transfer a fractional payload of the total, including TCP.

iiNet are going to fall flat on their face with this argument.

Sue the electricity companies too

[huwr]

It's important to consider that the studios are claiming that ISPs should be responsible for what their customers do with their service. That is, that "iiNet was responsible for customers downloading movies illegally and then burning them to DVD to sell or share with friends." To me, that's the much more interesting matter.

The studios should then sue the electricity companies for providing electricity to people's DVD burners.

No great surprise here.

[Anonymous Coward]

The movie industry is fighting against the very laws that they helped create. There are five very interesting posts that I found in a couple of minutes on Whirlpool that discuss the situation the ISPs and the media companies are in. The short of it: the media companies lobbied for particular procedures that let them go after individual users; they got them; and when they found that they were unworkable, decided to go after the ISPs instead. Deja vu, anyone?

I hope they have better arguments in court

[msobkow]

The page-a-day analogy is a good one. It really shows how weak the argument/defense is, and I really hope they have something better for their day in court. Otherwise they're just opening up the BitTorrent community to a general attack at the ISP level.

Honesty ?

[bug1]

If we are going to be honest, let us all (RIAA, MPAA etc) admit that its people, not technology that violate copyrights.

If we are going to be honest, how about the Music cartels refund all the royalties they collect from the sale BLANK cd's and dvd's. (they arent all used to violate copyright)

If we are going to be honest, how about the RIAA, MPAA stop labeling copyright infringer's as thieves (copyright violation isnt theft, different law).

If we are going to be honest, how about the RIAA, MPAA confess all the dirty legal and technical methods they have used in their attempt to convict anyone they can (other than the sony hack we already know about)

Its a dirty fight, the other side isnt interested in honesty or fairness, i say we fight them any way we can.

Wrong defense

[sashang]

That's a daft argument. You could extend that to say an ethernet frame and say 'oh because ethernet frames are broken up they can't be used to distribute copyrighted data'. Similar argument for reading writing blocks to disk etc... It's pretty obvious bittorent can be used to transmit information copyrighted or not. Their defense should focus on the accuracy identifying weather the information transmitted is copyrighted or not, since people do use bittorrent for legitimate reasons. ISP's probably want to win this case because they are aware of the enormous amount of traffic bittorrent generates, most of it being movies, mp3s etc... Forcing them to curtail this will hurt their revenue. The other side of the coin is that people that create music, movies, software are entitled to license it however they want. If they give it away for free good for you but if they copyright it and require payment for it then that doesn't mean you can just take it from them.

Why are these considered a "good" to begin with?

[Hertne]

Just a quick thought,

Copyrights can only be applied to goods, I believe, right? If this is the case, then why is IP of this nature even copyrighted to begin with?

It would, in my eyes, seem to be more of a service than anything. By purchasing a legal copy of a movie online to download, I'm receiving nothing physical for what I payed for. It's not a good.
  I am, however, being provided with the service of entertainment.

Can services be copyrighted?

If I were to go down the street, find a street performer and start to copy him (See: Eurotrip, silver "robot"), and other people were to start paying me, would that be considered copyright infringement? Can he copyright his "act" to begin with?

Maybe I misunderstand something, but this seems messed up to begin with...

Re:fantasy land

[meringuoid]

You do understand that consuming music means listening to it and consuming video means watching it, right?

I don't understand that at all. I don't consider either something you 'consume'. I listen to music. I watch videos. I don't consume either of them, any more than I consume a book when I read it, or consume a chair when I sit on it, or consume a table when I eat my dinner off it. To my mind, if you consume something, you use it and use it up entirely in doing so. You consume food, you consume fuel, you consume anything that is necessarily destroyed in the process of its usage. For nondestructive usage, we have all manner of perfectly cromulent verbs that we can use instead.

Wait a second.

[Lord Kano]

I am all for ISPs standing up for the rights of their users, but I call bullshit on this one.

Bittorrent CAN be used for copyright infringement, just like a photocopier. Just because it CAN be used for illicit purposes doesn't mean that it always is. I have downloaded several Linux distributions using Bittorrent.

It's one thing to say "No, we're not giving you any information about our subscribers without proof." It's quite another to pretend that it's not possible to do something that we all know is.

LK

I smell a technical loophole in this...

[jonaskoelker]

the downloader [is violating] the reproduction right by fixing the transitory data stream to a medium on his computer.

Allow me to conjecture wildly, and see where that takes me.

• If someone streams music to me, it's illegal for me to use mplayer -dumpstream.
• OTOH, I'm allowed to listen to the stream, which means I'm allowed to buffer the stream in memory.
• Say the default mplayer.conf says "buffer EVERYTHING first, then play it back". I'm allowed to buffer the whole file for purposes of playing it back (you can't expect me to know the technical details of how my program works).
• So if I buy a fuckton of RAM and a UPS unit, I could torrent everything to a RAM disk and play it from there: it's not the case that I fix the "stream" to a medium in a way that I don't do when I stream audio which I'm allowed to do.

From the {RI,MP}AA's point of view, there are two steps missing: "???" and "Lost profit!"

It would be interesting to see how this plays out in court. Maybe that's a way to be a law-abiding citizen while still getting Free Shit (tm)... otherwise, there's always Jamendo :D

Re:Meh...

[rohan972]

By that exact same reasoning a raw IP packet "cannot be used to distribute pirated content because a packet does not represent a substantial portion of the infringing material".

From TFA: They also claimed that, because files are broken up into tiny "packets" before being sent over BitTorrent, this may not be enough to suggest a "substantial portion" of a copyrighted file was distributed.

I think the argument might not be that sending it by packets cannot be infringement but that logging a few packets is not enough evidence either to kick their customers or be held liable themselves.

iiNet have a contract with their customers, not with the media companies. Should they disconnect people only on the basis of an IP number and file name given to them by a third party? They ought to be wary of breaking those service contracts. Since the customers also do not go on an ISP blacklist or anything (yet) all their compliance would do is to send that customer to another ISP, their competition, as well as expose them to lawsuits from ex-customers who got disconnected. So they have quite rightly stated that they require a higher standard of evidence than media company accusations.

Re:Zeno

[rohan972]

Yes. By extension, if you go to a bookstore several times and rip out some of the pages of a book each time until you have stolen the entire book, then there's nothing wrong. The degree of deliberate self-delusion on this thread is mind boggling.

The summary is badly written. If I understand the article correctly "They also claimed that, because files are broken up into tiny "packets" before being sent over BitTorrent, this may not be enough to suggest a "substantial portion" of a copyrighted file was distributed." they are intending to argue that logging a few packets is not enough evidence for them to kick their customers off or for themselves to be held liable. I don't think they are trying to argue that files are not distributed this way. It's not an unreasonable position to take given the various frivolous lawsuits in the US based on the same type of evidence accompanying the demand to break their service contracts and force their customers to their competitors service.