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Landmark Ruling Gives Australian ISPs Safe Harbor
omnibit writes "Today, the Federal Court of Australia handed down its ruling in favor of the country's third largest ISP, iiNet. The case was backed by some of the largest media companies, including 20th Century Fox and Warner Bros. They accused iiNet of approving piracy by ignoring thousands of infringement notices. Justice Cowdroy said that the 'mere provision of access to internet is not the means to infringement' and 'copyright infringement occurred as result of use of BitTorrent, not the Internet... iiNet has no control over BitTorrent system and [is] not responsible for BitTorrent system.' Many Internet providers had been concerned that an adverse ruling would have forced themselves to police Internet traffic and comply with the demands of copyright owners without any legislative or judicial oversight."
Suck it long and hard.
Landmark Legal Decision - Law and Common Sense Align
This case is probably not over yet.
At least we can do something right down here!
Thank you Mr. Cowdroy!
Me lost me cookie at the disco.
What I liked about this ruling was just how much they won it.
The judge said that Safe Harbour provisions did apply to the ISP... but they weren't needed because they only applied if the ISP explicit approved that user activity (which they do not)... and any infringement notices from the studios didn't need to be sent to consumers due to the Privacy Act (iiNet sends all infringement notices to the police instead)... and in any case the sending of infringement notices and subsequent banning etc was not considered a valid copyright prevention mechanism.
So yeah, they wiped the floor with them.
we still have a proposed Internet Filter, no R18+ rating for video games, and a South Australian government that passed a law saying that every person commenting about the election online must provide their real name and postcode. We have a long way to go yet.
...common sense? But it's Austfailia! This can't be true! Somehow they'll find a way to overturn this I know it.
This is really a great step in the right direction for Australia! Time to break out the suddenoutbreakofcommonsense tag!
"linux is just DOS with a UNIX like syntax" -- Galactic Dominator (944134)
The important part is what isn't said. The ruling didn't say that there was no obligation to police a certain part of the net for copyright violations, just that the ISP wasn't responsible for BitTorrent and thus wasn't obligated to police that part of the net.
Sigs are too short to say anything truly profound so read the above post instead.
It will be interesting to see if the studios take up a campaign of harassment lawsuits against individuals in AU. At least ISPs won't be foisted with another short-sighted compliance issue - now all us Aussies need to do is avoid Stephen Conroy's mandatory internet filtering debacle.... In either case, this is a great thing for industry: well done iiNet!
Translation:
1. Dey tuk er jeb! Won't someone think of the jeb?
2. Never should have allowed testimony about how the Internet works.
3. OK, fuck the courts, we'll just buy a few politicians. We'll tell 'em it's about protecting Australian jobs and about protecting de widdle chiwdwen.
4. Need to work out which politicians to buy.
Reports here this morning explicitly state that the Safe Harbour provisions were not invoked:
'Justice Cowdory agreed and said that, while iiNet was entitled to protection under the Safe Harbour provisions, there was no need for iiNet to take advantage of this as he did not find it authorised its users' copyright infringement.'
Thirty-four film companies representing the Australian and US film industries today expressed their disappointment that the Federal Court found that iiNet was not using orbital mind control lasers to encourage copyright infringements by its customers on its network.
Despite findings of copyright infringement by iiNet customers, pirate flags in their front yards and downloaded cars in their driveways, iiNet did not authorise the acts of its customers, merely sitting back and watching the tens of dollars rolling in to feather their own nests at the expense of the poor beleaguered major record companies and film studios.
Australian Federation Against Copyright Theft executive director, Neil Gane, said he was disappointed by the Court’s decision. "Today’s decision is a setback for the 50,000 Australians employed in the film industry, who work hard to send money to America as fast as possible. But we believe there's something not quoite roight about this ruling — it was based on a mere technical loophole centred on the court's interpretation of what the law technically says in actual words and original intention, rather than what it should say.
"We are confident that the government does not intend a policy outcome where zombie hordes of drooling open source copyright terrorists led by the evil genius Michael Malone are allowed to continue feasting upon the flesh of the living via the iiNet network.
"We will now take the time to review the decision before seeing if we can bribe enough federal politicians to get a law more to our liking."
http://rocknerd.co.uk
Here's a timeline of the case. Also the full ruling has been posted online.
"the law recognises no positive obligation on any person to protect the copyright of another," - Justice Cowdroy
Ah, reasonable, rational, and direct. Love it.
The Issue was decided by a single judge, which means the likelihood of appeal to the full bench of the Federal court and the high court after that is 100%. I think this is a good day for Australian ISPs. And despite the whinging from AFACT it does not protect pirates since the copyright holders have had the mechanism of going to the court for a court order to name an ISP subscriber for years. They just elected not to use it and tried to bully subscribers with infringement notices. And any ISP that didnt pass on these notices were run over the coals by AFACT as this case has demonstrated. But what this case demonstrates is that AFACT is not above the law. However I can see the Government tightening the legislation at the end of this case making any decision by the high court moot when it gets reversed by the incompetent Conroy and his band of merry men
That's what I'm most worried about coming into the next Federal Election.
He can tack a 1/2 baked policy somewhere into his list of election promises and targets like he did with the Content Filtering, which became mandatory after he won the election. It wouldn't surprise me if we see Copyright protections included into the Filtering legislation to force ISP's to work for free for big media.
Conroy has proved time and time again he has no idea what the internet actually is, or does and supports stronger enforcement of copyright without any recourse for the consumer. He is one man that needs to be heavily targeted by the Greens, The Pirate Party and the Liberal Party to lose his Senate Seat.
Feels good to be a citizen of Australia, and a customer of iiNet. Way to go guys!
And additional important ruling (taken from the summary):
This appears to be saying that when someone torrents, they only infringe copyright once. Which would make it economically unviable to go after people for casual copyright infringement via the internet, since damages would be severly limited.
No. Conroy is a tool. Getting rid of him won't change the underlying problem.
http://michaelsmith.id.au
"It's an election promise! Therefore, normal rules of legislative diligence do not apply!"
Unfortunately Stephen Conroy is at the top of the senate ticket in Victoria and even a targeted campaign has practically no chance of unseating him.
This sig is false.
Now, if we could just get rid of Conroy and Aktinson - I could almost be proud to call my self an Aussie again...
Needless to say, we in Australia don't have "proper" separation of powers because the administrative and judicial powers are combined.
I beg your pardon. The administrative and legislative powers are combined!
Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
'The law recognises no positive obligation on any person to protect the copyright of another.
The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts."
From http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html
Roadshow Films Pty Ltd v iiNet Limited (includes summary) (No. 3) [2010] FCA 24 (4 February 2010)
Domestic spying is now "Benign Information Gathering"
http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html
I've re-arranged the applicants based on ownership or affiliation (including distribution deals); the last number in brackets is the order on the list. Not a lot is left....
NBC UNIVERSAL:
UNIVERSAL PICTURES (AUSTRALIA) PTY LTD (11)
UNIVERSAL PICTURES INTERNATIONAL B.V (13)
UNIVERSAL CITY STUDIOS LLLP (2)
UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP (14)
UNIVERSAL STUDIOS INTERNATIONAL B.V. (27)
NBC STUDIOS, INC (19)
RINGERIKE GMBH & CO KG (15) (Movie: "Wanted" (2008))
INTERNATIONALE FILMPRODUKTION BLACKBIRD VIERTE GMBH & CO KG (16) (Movie: "Mummy 3" (2008))
MDBF ZWEITE FILMGESELLSCHAFT MBH & CO KG (17) (Movie: "The Kingdom" (2007))
INTERNATIONALE FILMPRODUCKTION RICHTER GMBH & CO KG (18) (Movie: "Mamma Mia!" (2008))
VIACOM:
PARAMOUNT PICTURES CORPORATION (3)
PARAMOUNT HOME ENTERTAINMENT (AUSTRALASIA) PTY LTD (8)
TIME WARNER:
WARNER BROS. ENTERTAINMENT INC. (4)
WARNER BROS ENTERTAINMENT AUSTRALIA PTY LTD (32)
WARNER BROS INTERNATIONAL TELEVISION DISTRIBUTION INC (21)
WARNER HOME VIDEO PTY LTD (23)
VILLAGE ROADSHOW FILMS (BVI) LTD (12)
PATALEX III PRODUCTIONS LIMITED (24) (Movie: "Batman Begins" (2005))
LONELY FILM PRODUCTIONS GMBH & CO KG (25) (Movie: "Blood Diamond" (2006))
WALT DISNEY CO.:
DISNEY ENTERPRISES, INC. (5)
BUENA VISTA HOME ENTERTAINMENT, INC. (9)
DREAMWORKS FILMS L.L.C (20)
NEWS CORP:
TWENTIETH CENTURY FOX FILM CORPORATION (7)
TWENTIETH CENTURY FOX FILM CORPORATION (AUSTRALIA) PTY LIMITED (10)
TWENTIETH CENTURY FOX HOME ENTERTAINMENT INTERNATIONAL CORPORATION (22)
TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC (33)
SONY:
SONY PICTURES ANIMATION INC (26)
SONY PICTURES HOME ENTERTAINMENT PTY LTD (28)
COLUMBIA PICTURES INDUSTRIES, INC (6)
GH ONE LLC (29) (Movie: "Ghost Rider" (2007))
GH THREE LLC (30) (Movie: "21" (2008), "Vantage Point" (2008), etc.)
BEVERLY BLVD LLC (31) (co-financing fund with Relativity Media)
SEVEN NETWORK (OPERATIONS) LTD (34)
"Landmark ruling" and Australia don't mix. Who gives rat's ass?!
The gollowing 5 states do not have a supreme court
Ashmore and Cartier Islands
Australian Antarctic Territory
Coral Sea Islands Territory
Heard Island and McDonald Islands
Jervis Bay Territory
Special award goes to
Cocos (Keeling) Islands, with a population of 628 people they have found a need for their own supreme court. This may just create the must supreme court justices per head of population anywhere in the world.
http://www.itwire.com/telecommunications-news/networks/36473-spooks-get-broader-powers-to-bug-internet
[Australian] Spooks get broader powers to bug internet"
Isp's can watch and report on traffic, gov agencies can make copies of your isp usage logs.
Bt would make an isp look, then its just finding out what you looking at.
Domestic spying is now "Benign Information Gathering"
There's a small problem with targeting somebody to lose their Senate seat, especially when that somebody is in one of the two major parties (Labor or Liberal), and especially when that somebody is at the top of that party's Senate ticket for the state in question.
Basically, Australian Senators are elected on a quota system. Let's say that there are six seats to be filled (as is typically the case at an Australian Federal government election for state senators - each state has twelve seats in the Senate, and the ACT and the Northern Territory have two seats each; half the state senators are elected during most elections, whilst the ACT and NT senators are up for reelection at every election. This varies during a double dissolution election, when ALL seats are up for reelection - twelve seats for each state.) Let's say that there are seven thousand voters in the state (yes, I know there will be more; doing it this way makes the numbers much easier to play with.) Then a quota is (7000/(6+1))+1 votes, or 1001 votes. (In a double dissolution election, the quota would be (7000/(12+1)+1), or 540 votes.) If a given ticket gets 2002 votes, then that means they automatically have two quotas, and their top two candidates are given Senate positions.
There are a lot more intricate details to do with how surplus votes from a given ticket flow on to the next candidate, but they're not really relevant here. The point is, basically, that unless the Labor party decides to put Conroy further down in the ticket - to the third or fourth position - he's safely ensconced, and can't be ousted.
More's a pity.
Sorry but I suspect the endgame is presented in this http://www.abc.net.au/news/stories/2010/02/04/2809856.htm quote: Outside court, Australian Federation Against Copyright Theft executive director Neil Gane said he was disappointed with the decision. He said the case was lodged to try to protect the livelihoods of the thousands of Australians who work in the television and film industries. Mr Gane said he was confident that the Federal Government would now review the laws surrounding copyright infringement. as the saying goes, who needs judges and courts when you can afford politicians.
Please mod this up. A good study of history will show you that people who live for power and control do not give up easily. They would not see this as a defeat; it is merely a setback that requires a change of tactics. They know very well that they need only one major victory and thereafter, the result they want will become enshrined in law and almost impossible to repeal. To give a seemingly unrelated example, the USA income tax was "temporary". It's temporary alright, in the sense that one day the sun will stop shining...
It is a miracle that curiosity survives formal education. - Einstein
1 Minister, slightly used, in good cond. 8 months left in office. $15,000 ONO
Calling someone a "hater" only means you can not rationally rebut their argument.
AFACT would usually lie to the Full Court (of the FedCrt) and then to the High Court of Australia...
The gollowing 5 states do not have a supreme court
Ashmore and Cartier Islands Australian Antarctic Territory Coral Sea Islands Territory Heard Island and McDonald Islands Jervis Bay Territory
Special award goes to Cocos (Keeling) Islands, with a population of 628 people they have found a need for their own supreme court. This may just create the must supreme court justices per head of population anywhere in the world.
None of those are states.
I hope your civil rights struggles against your government go well.
Only the dead have seen the end of War. - Plato
Justice Cowdroy said that the 'mere provision of access to internet is not the means to infringement'
We desperately need more lawmakers and Judges like this. And a few more wise folks who see beyond the smoke of copyright infringement fiasco.
But then again, dreams like these seldom become reality in today's world.
can you demonstrate that what you said actually applies to Australia?
Sure. Just look at the name of the present case Roadshow Films Pty Ltd v iiNet Limitedi , for instance.
I'm assuming you realise that in Australian law, and action in rem is available only in admiralty, yes?
"The splinter in your eye is the best magnifying glass." -- TW Adorno
Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
63. As an aside, a ‘byte’ is a term that refers to a certain amount of data, namely 8 ‘bits’. A bit is either a zero or a one, given that computers compute by means of binary code. A ‘kilobyte’ is 1024 bytes, a ‘megabyte’ is 1024 kilobytes and a ‘gigabyte’ is 1024 megabytes.
Let the flamewar begin...
Up next, dogs and cats living together.
The court even took issue with the MPAA/RIAA pushed idea that copyright infringement is theft:
p 171 As an aside, the Court notes that AFACT, the organisation which the applicants use to aid in enforcement of their copyright, itself blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright *Theft* [emphasis added (by the court)].
Can someone point out what was offensive in there?
Calling someone a "hater" only means you can not rationally rebut their argument.
So now that the finger's been pointed at the BT protocol, does that mean they go after it after they failed to hold the "internets" responsible? I really fear for the long-term survival of the BT protocol due to cases like this. It's going to end up as the scape-goat and ISP's will start to block it since it's obviously only used for illegal activities. I mean the media companies wouldn't lie, would they?
Thank fuck!
http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html link to judgement The following is from the summary - I think it is an interesting finding particularly with respect to the large damages payouts you get in those US cases: " The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs."
Because they are territories of the federal government, and IANAL but I believe they fall under the Federal court.
"If everybody is thinking alike, somebody isn't thinking" - Gen. George S. Patton
iiNet - pronounced aye-aye-net? Pass me my parrot and wooden leg...
Indeed - he is a tool!
...a deaf judge seems to have presided over a case against Men at Work in which it is claimed that their song 'Down Under' plagiarizes a song from 1935 named 'Kookaburra Sits in the Old Gum Tree'. I listened to that song. It is nothing at all like the flute riff in 'Down Under'. Still... They Won. What do you think?
--frank[at]unternet.org
Now if only we can explain that trackers don't hold any content, only a means for people to connect to eachother, and that P2P networks aren't inherently evil, that'd be great.
n/t
'bout time we had some legal sanity down here. Now all we need is for bloody Senator Conroy to drop the internet filtering bullshit and we'll all be happy campers.
Go permanent? In your dreams and my worst nightmares.
As an Optus customer for about eleven years (basically since they first took the field against Telstra) I have to say that I'm quite satisfied with my current ISP.
On the other hand, I feel this rather insistent urge to start looking over iiNet's web page, see what they offer. Just out of curiosity, y'know. Don't use the Optus POP3 email address much any more, anyway. Hmm...
Do not mock my vision of impractical footwear
"The Federal Court dismissed legal proceedings against iiNet on 4 February 2010. Judge, Dennis Cowdroy, rejected the Australian Federation Against Copyright Theft's claim that the ISP encouraged its customers to engage in piracy."
from http://research.scottrade.com/public/markets/news/news.asp?docKey=100-035i6776-1§ion=headlines