Aussie Film Industry Appeals ISP Copyright Case

schliz writes "The Australian Federation Against Copyright Theft (AFACT) has appealed a Federal Court judgement that this month exonerated ISP iiNet for its subscribers' copyright-infringing activities. In the widely publicised case, AFACT sought to penalize iiNet for its users having made 100k illegal downloads. A judge ruled that 'mere provision of access to internet is not the means to infringement,' but AFACT now claims the judgement 'left an unworkable online environment for content creators and content providers' and 'represents a serious threat to Australia's digital economy.'"

Comments

The courts should not ...

[Anonymous Coward]

change the law so that your business plan works.

Re:The courts should not ...

[GrpA]

Indeed, the cynical amongst us might think that they planned to lose the case to iiNet just so that they could make this very appeal...

GrpA

Re:The courts should not ...

[jamesh]

Their job is to make sure the market is running effectively.

Nope. Last time I did any sort of legal studies at school, the role of the courts was to apply the law to the matter at hand. They can also interpret the law in cases of ambiguity (eg for situations that didn't exist when the law was created). It's certainly not their role to set policies for commerce though. If the law says one thing they they have to apply it whether they think its fair or not.

If something attracts as much attention as this then the government might start floating around policy changes to 'fix' the situation up, but that's not the role of the courts.

('fix' is in quotes because the cynic in me says that it will be 'fixed' according to whoever throws them enough money...)

Re:The courts should not ...

[dov_0]

The REALLY cynical amongst us are in actuality realists. Not surprised at all. The case was definitely part of their agenda to make other organisations spend huge amounts of money to prevent harm to themselves (ie, lawsuits) to in turn to force more money into the music distribution industries already bulging pockets. This court case went the wrong way for (not)AFACT, but I'm sure they only view it as a temporary setback.

Oh I I feel so sorry for them

[Mag7]

an unworkable online environment for content creators and content providers

Boohoo. They wanted someone else to do their dirty work for them, but now they have to actually use the legal system as intended which requires a great deal more effort. Cry me a river that they don't get a short cut to justice.

Re:Oh I I feel so sorry for them

[TapeCutter]

"Cry me a river"

Or as we Aussies would say - Suffer in your jocks AFACT.

AFACT? That doesn't make sense

[erroneus]

. . . Copyright Theft?

This goes beyond the typical slashdot positional debate on whether or not violations of copyright are considered theft or infringement. I would propose a new clever acronymic name:

Australian Federation Against Respect for Copyright. That would make them AFARC which would describe their organization and efforts a lot better.

Restores your faith in the legal system

[Bearhouse]

At least in Australia. Well worth reading the last link, (http://www.itnews.com.au/News/167984,analysis-five-ways-afact-lost-the-iinet-case.aspx.).

The internet is a threat to the digital economy?

[branewalker]

A threat to the digital economy? Ok, let's ban computers! They make it trivially easy to copy intellectual property! They are a threat to the digital economy! And the Internet! It's a threat to the digital economy!

Digital Economy?

[halowolf]

The only digital economy that I can see AFACT being interested in is propagating its anti-competitive, artificial markets that lets Australian users get content that was released 6 months ago in the US, late, or not at all. In fact piracy has helped improve Australian free to air television by encouraging TV stations to screen popular TV series as soon as they possibly can so that pirates don't need to actually download those shows. A lot of the reason behind people in Australia downloading shows is because they just are not available to view in Australia for months on end if at all. It doesn't make it right, but its one of the big reasons it happens.

All we want studios is to be able to legally obtain content in our Australian region when it is released in another region like the UK or US in a timely manner without all the local market bull-s*@t that you put us through time and time again so you can make more money by charging us more when we could buy it in the US or something where they have real market competition for cheaper.

Of course there will always be the bunch of people that infringe copyright that just want the stuff for free, and its these people I have no sympathy for, as its used as an excuse by content creators to screw us over time and time again as they seek their almighty dollars.

Why single out ISP's ?

[daveime]

I don't remember a single instance where a Postal Service, a Telephone Company or a Bank were asked to behave in this manner ?

Fine, monitor the transactions being made, report them to the concerned party upon presentation of a search warrant or other legal document. But an ISP should NOT be judge, jury and executioner, they should only ever be a "witness" / "informant" (delete as appropriate).

All these companies provide is a service, and they are only legally / morally obliged to report wrongdoings. They are not required to go in "Jack Bauer" style and take out the dirty pirates. That's the job of the legal system.

Re:Why single out ISP's ?

[timmarhy]

the ISP shouldn't be required outside of a court order to monitor anything. if you were to try hunt down even a fraction of p2p users you'd have to have 100's of people working at it, turning up to court dates, collecting evidence.

why the fuck should iinet (and by extension it's customers) have to foot that cost just to protect the film industries clients? fuck their IP, i don't get to DEMAND the local council provide free security and install an alarm free of charge in my house because someone might steal my property, just because the local council provides the footpath theives walk on.

These people are insane.

[Ritontor]

Since when is it the role of the courts to arbitrarily legislate to protect the failing business models of certain corporations?

Re:Unclear point

[timmarhy]

all i can do is lol. if the court found in favour of all these things, how does AFACT explain the need to appeal?

the thing that's really pissed AFACT off is that they were ordered to pay iinet's costs to the tune of some 400k. guess there's no chance they will take this opportunity to reflect on the fact THEY are in the wrong.

I see some possibilities here

[hyades1]

Step 1: From a conspicuously untraceable location, have somebody you trust mail you a particularly vile specimen of pornography.

Step 2: Immediately complain to the police.

Step 3: Sue the Post Office for conveying this distressing item to your house, where no doubt it was seen by children, kittens and the church officials you happened to have as guests.

Step 4: Complain about the terrible damage to the tender sensibilities of said guests and damage to your impeccable reputation for moral rectitude.

Step 5: Profit!

I'm moving to Australia, where I'll soon be rich beyond my wildest dreams of avarice...at least until some specimen of the local wildlife bites, stings, chomps or otherwise envenoms me and I die screaming in agony.

Re:Unclear point

[deniable]

They were asked by an industry group to police piracy. They told them it was a job for the Police and happily forwarded the complaints to the cops, who turned around and said something like 'why don't we go after rapists and murderers first.' The industry group then got its knickers in a twist and sued them.

Re:The internet is a threat to the digital economy

[rtb61]

To be honest the internet is a threat to the digital economy --------- of the middle men, those that contribute nothing but, hmm, bullshit. The publishers who spend their lives lying about the quality of the content they 'publish', who produce (not create) some of the worst content imaginable (I not sure that word should be associated with the content they produce) where they pay peanuts to the best performing casting couch specialists, the endless parade of one hit drunken drug addled performance artists.

What does this work or those people actually contribute to society, is their work to be considered a useful art, or should their narcissist sociopathic behaviour become a part of shameful history. Their willingness to corrupt everything they touch, law, politics, society, and even children and they believe they are worth protecting, that their ability to exploit and distort human mores to fit their own psychosis is of valuable to society.

So will the digital economy be better with or without them, how about the real economy, the one of humanity and the planets natural resources, can they continued to be wasted upon this groups their very public excesses, you could not find a group that consumes and pollutes more than them.

A Law Student's thoughts:

[dadjaka]

Disclaimer: While I am an Australian law student, I've only read the summary of the decision, (c'mon, it's 200 pages), nor have I studied IP Law.

However, I do have a year of Law school behind me, so:

  - Australian law makes a distinction between findings of fact (i.e. John stabbed Mary) and findings of law (i.e. law x says stabbing is illegal). Findings of law can be appealed (you can argue the judge misinterpreted the law), but it's *much* harder to appeal a finding of fact. AIUI, there aren't many findings of fact in this case: the Justice found that Malone was a credible witness as a matter of fact, but the rulings on which the case was founded (i.e. that BitTorrent is the means of infringement, as opposed to the internet) are all findings of law.
  * tl;dr => Most of the ruling could be overturned on appeal.

  - The case was decided by a single judge of the Federal Court. That means that, IIRC, it will be appealed to the full court of the Federal Court (3+ judges). From that, it could be appealed to the High Court. (The highest court in Australia; equivalent to the Supreme Court in the US)
  * tl;dr => The appeal may not be the last, there could be another.

  - I'm not going to venture an opinion on the outcome of the appeal; I don't know enough. I also haven't been able to find AFACT's grounds of appeal; if I can I might be able to shed some more light on the possible success.
  * tl;dr => Who knows what will happen?

  - Ultimately, AFACT and their lobbyists will likely convince the politicians to change the law, whatever the outcome. This will probably suck - Aussie Communications Ministers traditionally do an average to poor job regardless of political persuasion. (examples include: mandatory filtering, "World's Greatest Luddite")
  * tl;dr => What ever happens, we're probably screwed because of politics.

Re:The internet is a threat to the digital economy

[rtb61]

That money is not created, it is bled from the rest of the economy, a parasitical existence is not a contributory existence, they neither feed, house, clothe, heal, transport or produce useful usable goods. Plus, please do not confuse the exploited creators with the exploitative publishers. The creative commons, openly self published on the internet is a far more valuable and inclusive resource, where content is a participatory experience.

So profit and greed is what you claim as their one saving grace, hmm , drug dealers and pimps could also fit exactly that same profile and oddly enough they are equally destructive of society and as it turns out, they are also closely associated with the content publishing industry, now why do I not find that a surprise.

AMERICAN Film Industry Appeals ISP Copyright Case

[papafox_too]

The so-called Australian Federation Against Copyright Theft (AFACT) is actually an not Australian at all. It is controlled by the Singapore office of the MPAA and funded from Los Angeles. AFACT has no formal or informal mechanism to allow interested Australian's to join.

To quote Justice Cowdroy from Roadshow Films v iiNet:

"AFACT is an organisation set up for the purposes of benefiting its members. The exact nature of the relationship between the applicants and AFACT is not clear. Mr Gane, the Executive Director of AFACT, suggested that there was no formal membership process by which one can become a member of AFACT, whether by application or agreement. The Motion Picture Association (‘MPA’) and the Motion Picture Association of America (‘MPAA’) have a membership of the major American film studios. They are not associated with AFACT by any formal written agreement. However, AFACT does report to the regional branch office of the MPA which is based in Singapore. In respect of operations in the Asian region, the Singapore office of the MPA prepares a business plan or budget for AFACT which is approved by the Los Angeles head office of the MPA. [...] [I]t must be remembered that the applicants were not the entities making the allegations of copyright infringement in the lead up to these proceedings: rather, AFACT was doing so. [T]he exact relationship between AFACT and the actual copyright owners (the applicants) is, at best, unclear."

ObHeinlein

[sconeu]

It's time, once again, for the ObHeinlein:

There has grown up in the minds of certain groups in this country the notion that because a man or a corporation has made a profit out of the public for a number of years , the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped ,or turned back, for their private benefit.

-- The Judge in "Life-Line"