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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."
An ISP grew a pair?
One packet per customer, sorry folks.
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.
B) Eliminate all the stupid users. This is frowned upon by society.
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
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.
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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.
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.
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.
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.
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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.
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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.
apology accepted
someone who only downloads and doesn't seed back is entirely innocent
except said someone is kind of a douchebag
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.
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.
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.
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.
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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.
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.
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
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. :)
"In the absence of the ability to establish the attribute of truth they tried to establish the noble attributes."
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.
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