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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.
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.
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.
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.
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
Justice Cowdroy, Neil.
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
http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html
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...
iNet has no control over BitTorrent system and [is] not responsible for BitTorrent system.
To define it as a system is interesting, when it's really a "society". Bittorrent is simply the protocol of the society of people who wish to acquire media on the internet in a free (not as in beer) manner. If the media companies could provide a way to allow people to pay a reasonable licensing fee by choice for the content they provide then people would use it. Unfortunately the vast majority of people don't feel the content is worth what they charge. But the same individuals are also motivated by social pressure to watch the content, pressure that is created by the media advertising. So they make us want the content, but then don't provide it at a reasonable cost. This causes humans to naturally seek the path of least resistance, even if it means bending a few "laws" that are out of date and not really even relevant any more. Media would love to be drug pushers and they really are to a certain extent. Where it breaks down is that they create demand and are unable to provide supply therefore the free market takes over and makes it available. There is only one solution, to stop making the content, or to form a police state that regulates the content for the companies. Neither are a viable solution for anyone. Their profits will plummet in either situation. So what will happen is that there will be more consolidation in the industry, less competition, and only the company that can make content people want for as cheaply as possible will succeed. It looks like iTunes was a pretty good first guess. People will pay $1 for things if it's convenient. I don't see the industry going out of it's way to increase the convenience of acquiring their content so likely they will fold and the people who actually make the content will have to find a new way make it cheaply and get it to the customer.
Cool! Amazing Toys.
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?
...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
allow people to pay a reasonable licensing fee by choice for the content they provide
This is a straw man used time and time again. Even several studies prove otherwise. People steal just because they can and its usually driven by a sense of self entitlement. In other words, you have it, I want it, therefore you should give it to me, without any regard for its cost. Why pay $0.99 for a song when I'm not only entitled to it, but can receive that entitlement for free?
At the end of the day, people are stealing because they can and the price is seemingly not an issue. And saying they wouldn't have otherwise payed for it is also a straw man as most studies indicate somewhere between 10%-25% who stole it would have otherwise purchased it. And for smaller businesses, taking a loss of 10%-25% can be a make or break deal. While not in any studies I've read, I strongly suspect that if the sense of self entitlement were addressed, that percentage would likely rise.
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.
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