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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."
The salient quote from the judge - "the law recognises no positive obligation on any person to protect the copyright of another".
Hey, I live in Australia and therefore I resemble that remark...
Actually it has NOT been overturned yet. The South Australian Attorney-General declared that he would scrap the laws AFTER the upcoming election. Now this is assuming that he and his party will still be in power after the election (a big assumption indeed).
If he isn't then I'll bet my chops that the Conservatives who are then in power will do everything they can to retain the draconian law.
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
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.
You missed something else we still have. The separation of the administrative/legislative and the judicial arms of government.
The judicial arm is effectively separate, but the separation of the executive (administrative) and legislative arms of government isn't necessarily a good idea; look to America for some solid examples why. Which isn't to say it doesn't have its benefits, but I don't think they outweigh the cons. In particular, I don't think it in anyway increases government accountability, but it certainly does decrease government effectiveness, and an ineffective government is bad no matter where you sit on the political spectrum, as it impedes a government mandated by the people to implement policy from being able to do so.
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)
It's almost like the judge-- reads? {mindreel}
"There has grown in the minds of certain groups in this country the idea that just because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with guaranteeing such a profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is supported by neither statute or common law. Neither corporations or individuals have the right to come into court and ask that the clock of history be stopped, or turned back."
- Heinlein, Life Line, 1939
UTF-8: There and Back Again
As a matter of fact, the Australian judge presiding over this case examined safe-harbour provisions and similar cases from US law and he mentions those examinations in the judgement document.
This is common sense really, as ISP's are a carrier and not liable for the content that passes through their networks.
Unfortunately what will happen is Conroy, the Minister for Communications, who has already identified himself as being strongly pro-copyright, will now attempt to enact harsh laws to force ISPs to surrender private information to AFACT companies and allow direct attacks on the Australian population. Conroy is the same minister who was voted Internet Villain of the Year last year for his ongoing attempts to enact a hidden, government controlled blacklist censorship system to "protect the children" (although really it just blocks political, anti-abortion and euthanasia websites and a few local Australian businesses thrown in at random).
I am government man, come from the government. The government has sent me. -- G.I.R.
I am an Australian lawyer and I will endorse what Capsaicin said - a corporation is quite definitely a "person" at law.
It's difficult to pinpoint it as it's a Common Law definition rather that one that's set out in a statute. It's one of those things that just is, with origins in England in about the 15th century.
I know it's not a great piece of proof, but for the sake of simplicity, I offer the definition of "person" in the Australian Corporations Act 2001 which includes a superannuation fund. If it can include a superannuation fund, you can damn well bet it includes a corporation.
If you read the ruling (I'm ~ 1/2 way through it now), he defines it as a 'system' primarily in order to distinguish BitTorrent (the whole kit & caboodle) from BitTorrent (the protocol), BitTorrent Inc. (the company), and various BitTorrent clients (which, to quote from para 60, "include Vuze, and, rather confusingly, the BitTorrent Client, which is the BitTorrent client of BitTorrent Inc."). In doing so, he nicely separates the technical, legal, and 'social' aspects - and decides purely on the legalities.
(Yeah, 'social' in quotes - look, I'm old, so personally I'd argue against BT being some sort of expression of a proto techno-utopian society. I don't get Facebook or Twitter either ;-)
Read the whole thing - it's remarkably easy to read (as decisions from Australian courts often are), well explained, and the decision is well thought out and justified.
There's plenty of wry giggles to be found in there too - his explanation of the whole studio / AFACT / MPA / MPAA relationship, his respectful smackdown of many of AFACT's claims & arguments, and more - plus some interesting points regarding related issues such as the number of infringing copies each user is responsible for (hint: not as many as the MPAA / RIAA likes to usually claim).
In short, this is a guy who either had a good handle on the tech beforehand, or has listened well to both the technical and legal arguments of both sides, and has ruled based on both the way the tech works and the law.
What part of "a well regulated militia" do you not understand?
The case was backed by some of the largest media companies, including 20th Century Fox and Warner Bros.
Irresponsible behavior (some would say - criminal) and total lack of respect for our internet from these last century media company behemoths really does make it that much easier to justify going out of our way to never ever pay them a penny - on moral grounds. Oh they will still get paid, and paid very well for doing nothing, what with our taxes going right to their pockets. What a convenient business model! However a serious correction in market capitalization is obviously in order for these people - they apparently will not be content until they destroy the internet.
As an aside, in parts of Europe they released the Disney channel last year or so to free view on TDT. Previously it was cable TV subscriber only where the post-war economic crisis was causing their viewer ratings to seriously drop. A generation of little EU'lings growing up without crying for their "Micky Mouse" tee-shirts or wanting to go to "WarnerBros world" must have scared the absolute goofies out of them.
...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
Not until the copyright expires. I have no problem with reasonable copyright terms but this is yet another straw man as its completely orthogonal to the issue at hand. Excessive copyright terms are not justification to steal something today. So contrary to your flawed assertion, no you absolutely are not entitled to it as you see fit, on your terms and no other.
You are also using terms like stealing which I believe implies a more extreme form of infringement (deliberately taking another's work and then reproducing it for sale), so your standards and my standards are different.
I simply view the current copyright laws as a breach of the social contract and since I don't have the pockets to fix it, or the time/money to push something like that to the supreme court, Perhaps if my hardware wasn't intentionally crippled in order to prevent something that I wasn't doing in the first place. It has just reached the point where I simply have no care for it anymore. At least not in the state it is in now. As you have these companies lobbying to have a system instituted whereby people's Right to Free Speech can be stripped under very light judicial oversight... again, I simply refuse to honor it anymore.
Much as if I saw someone smoking Marijuana. I don't care if it is illegal, the government is in the wrong trying to enforce such laws and I can not in good conscience support the prosecution of such 'crimes'. I don't personally do it as I have other motivations and reasonings, but I'd abstain from supporting any efforts to prosecute.
Out of modpoints but really liked a post? 1BDkF6TtmmeZ3yqXbz9yhdYVqRYnwFoXDj