BitTorrent Trial Makes Australia's High Court

daria42 writes "Australia's highest court has agreed to hear the long-running BitTorrent case between one of the country's largest ISPs, iiNet, and a group of film and TV studios represented by a copyright organization known as AFACT. The case has the potential to determine once and for all whether Australians who download content via BitTorrent can have their Internet connections disconnected upon the request of the studios. It's lawyers at ten paces!"

Comments

Im supprised it got this high.

[renegadesx]

The High Court usually only hears cases that people argue goes against the Consitution and doesn't hear appeal cases too much.

Re:Im supprised it got this high.

[Anonymous Coward]

That's not necessarily true. The high court hears appeals against Supreme Court decisions, Constitutional challenges, and all areas of contract and other law - particularly in very high value disputes.

Constitutional challenges are a small minority of the work the High Court does.

Re:Im supprised it got this high.

[tick-tock-atona]

Australia also has a constitution. We just don't treat it like Moses brought it down off the mountain.

Re:Im supprised it got this high.

[Anonymous Coward]

Australia also has a constitution. We just don't treat it like Moses brought it down off the mountain.

Hey now, we yankees don't do that! For a while, we amended it every few years, whenever we got tired of what it said. Eventually we realized changing it was unnecessary work, and just started pretending it said something new.

Re:Im supprised it got this high.

[wdef]

Australia also has a constitution. We just don't treat it like Moses brought it down off the mountain.

Please explain. The Constitution in Australia establishes the structure and powers of government and the law. How is that less sacrosanct than the US Constitution? And it gets interpreted in new ways just as the US Constitution does. But there is no Bill of Rights and only a few rights are expressed or implied which makes it an inferior document in my view to its US counterpart. I don't know but I imagine Australia's citizens back then must have thought Common Law protections were good enough - but those can and have changed as we have seen.

Re:Im supprised it got this high.

[adona1]

One was written by revolutionaries, the other by lawyers. Guess which one doesn't have guaranteed rights? :P

Re:Im supprised it got this high.

[Cimexus]

You're exactly right. It is legally just as sacrosant as the US Constitution. Hell, large parts of it were based ~on~ the US Constitution. And indeed you aren't the only one to note that it lacks one of the US Constitution's most well-known features.

The introduction of a formal Bill of Rights in Australia has been a hotly debated jurisprudential topic on and off for much of the last few decades. The arguments against include (broadly speaking), things such as:

- Common law protections and the principles of equity are good enough (there is some truth to this - common law protections in the UK and Australia are reasonably comprehensive); or
- To list or precisely define rights, is to limit them (to those explicitly mentioned). Therefore no Bill of Rights please! (again, I can see some merit in this argument - the rights that are important today might not be important in the future, or rights we haven't even thought of today might become relevant, so if your Bill of Rights is difficult to amend it may become 'out of date' rather quickly)

The arguments for a Bill of Rights are obvious: the same ones that led to the US one. There is also some debate about whether such a Bill would actually be in the Australian Constitution (pretty unlikely IMO), in entrenched legislation ('normal' legislation, but with extra requirements to amend it that make it very difficult to overturn or change), or just a normal Act (with the standard options for repeal and amendment available).

Apologies if you knew all this already - unclear from your post whether you are American or Australian. But could be interesting reading for someone. :)

Re:Im supprised it got this high.

[king_grumpy]

The high court's own website says "to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals" http://www.hcourt.gov.au/about/role-of-the-high-court

Re:Im supprised it got this high.

[nospam007]

Also people arguing against reality.

Re:Im supprised it got this high.

[TheNastyInThePasty]

- To list or precisely define rights, is to limit them (to those explicitly mentioned). Therefore no Bill of Rights please! (again, I can see some merit in this argument - the rights that are important today might not be important in the future, or rights we haven't even thought of today might become relevant, so if your Bill of Rights is difficult to amend it may become 'out of date' rather quickly)

Well the Ninth Amendment is supposed to protect us Americans against that but politicians and political shills often find it more convenient to ignore that :) ("You have no constitutional right to _blank_ so the government can _blank_ you hard in the _blank_ any time they want")

Re:Im supprised it got this high.

[0111 1110]

You may already be aware of this but the US bill of rights, an explicit enumeration of our rights, was quite hotly debated here as well. It was felt by many at the time that any explicit enumeration of rights would seem to imply that those are the only rights we had and that as long as the government did not infringe on those it could do absolutely anything else it wished.

Predictably enough that is precisely what has happened. The US government most definitely does not recognize any rights that are not in the bill of rights. For instance, airline travel is considered a privilege, not a right. Only walking and possibly travel by horse or bicycle are considered rights. If a certain technology was not around at the time the first 10 constitutional amendments were written it is automatically a privilege that can be revoked at any time and not a right.

The 9th amendment states: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.. AFAIK, it has never been successfully used to protect a single human right that was not mentioned in the bill of rights. Effectively it has always been ignored completely. Maybe we would have been better off with a bill of rights for the government instead of for the people. Oh wait...that is what the constitution was supposed to be, a limitation on their power. What a joke.

The only way to limit the power of a government is through large scale organized violence. That is the only real power. In the end, words scribbled on a piece of paper mean very little. And the English language is much too vague anyway. It can always be interpreted by those in power to mean whatever they want it to mean. Or when that fails, just it can just be ignored like the 9th amendment.

Re:Im supprised it got this high.

[renegadesx]

Im Australian = you fail

Re:Im supprised it got this high.

[Macgrrl]

I'd need to go look it up, but I thought you could dispute a High Court ruling to the Privy Council in the UK.

Impact is no laughing matter

[GoochOwnsYou]

All it will take is a dubious copyright or patent claim against Linux get someone's connection cut. Make no bones about it: AFACT has been much more organised and persuasive than the RIAA & MPAA and too are attempting to force ISP's to do their dirty work for them.

Re:Impact is no laughing matter

[femto]

We have penguins here in Australia. In fact, the reason Linux has a penguin as its mascot is that Linus contracted Penguinitis when bitten by a Little Penguin, while visiting Australia.

Re:Impact is no laughing matter

[Cimexus]

Actually Australia has penguins in various coastal locations anywhere in the southern half (approximately) of the continent. They aren't the same species as the stereotypical penguins you would think of when you think of Antarctica, though. Some of them look very different.

Re:Impact is no laughing matter

[TapeCutter]

There's a small colony of fairy penguins on (or near) South Melbourne beach.

iiNet

[liamoshan]

This is why I've been a a happy customer of iiNet for nearly a decade

When AFACT wanted ISP's to pass on copyright infringement notices to their users, Telstra, Optus etc were happy to roll over and do as they were told. iiNet effectively said "If you have proof of a crime being commited, take it up with the police. We're not here to have our customers harassed just because you say so". AFACT took exception to this, hence this trial

Re:iiNet

[QuantumG]

wow, it's like a battle of wits between two unarmed opponents.

Re:iiNet

[SebZero]

This is why I've been a a happy customer of iiNet for nearly a decade

Ditto. I like my ISP providing the service I pay for and not terminating it because a third party (ie NOT the police or a court) says they should.

Re:iiNet

[alexo]

wow, it's like a battle of wits between two unarmed opponents.

Would that be a battle of twits?

Nonsense

[qxcv]

I see a lot of over-reactions here. Just because the High Court has agreed to hear the trial does NOT mean that the outcome will be any different this time. IANAL, but AFACT's claim seems like absolute bullshit. From Copyright Act 1968:

A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in a work merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.

That seems like some pretty strong legalese in favour of iiNet.

Re:Nonsense

[wdef]

But the Copyright Act is not the Constitution. Isn't the whole point of going to the High Court is that they have the power to overwrite lesser statutory law?

Re:Nonsense

[wdef]

.. and the decisions of lower courts of course.

Re:Nonsense

[qxcv]

Copypasted from Wikipedia:

The High Court's appellate jurisdiction is defined under Section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the States, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia), and from decisions made by one or more Justices exercising the original jurisdiction of the court.

It seems that the High Court was originally reserved for matters pertaining to the Constitution and Commonwealth offices, but now has a much larger jurisdiction. Of course, IANAL, so can anybody confirm/deny/correct this?

Re:Nonsense

[Cimexus]

Only if AFACT's lawyers are actually challenging iiNet on something in the Constitution though. That is, AFACT would somehow have to argue that that provision from the Copyright Act is somehow unconstitutional, which seems a very long bow to draw. I suspect therefore that this case is just a standard appeal to the High Court on some other legal matter, not a Constitutional one.

Then again I haven't actually read the previous cases or the article so I could just be wrong. I just have a gut feel the Constitution doesn't have much in it that you could use to knock down the carrier provisions from the Copyright Act with...

Re:Nonsense

[QuantumG]

I'm totally ignorant of the issues but I still have an opinion.. welcome, this is what Slashdot is for :)

Re:Nonsense

[geoffaus]

I have a feeling AFACTs argument might go something like "...in summing up its the constitution, its Mabo, its justice, its law its the vibe and thats it, its the vibe"

Re:Nonsense

[Anonymous Coward]

I'm totally ignorant of the issues but I still have an opinion.. welcome, this is what Slashdot is for :)

Well yes, but you post failed to voice that opinion loudly.
You are also supposed to just guess what the TFA and TFS says by only reading the headline and then complain that the TFS doesn't say the same thing as the TFA and that both were written by morons.

Re:Nonsense

[TapeCutter]

Tell AFACT they're dreamin.

Copyright Theft? FAIL!

[xenobyte]

Illegal file sharing is copyright INFRINGEMENT, not theft! - Get it right, people! Or are you too stupid to get it?

Re:Copyright Theft? FAIL!

[qxcv]

Every time somebody uses the word "copyright" to refer to the copyrighted work itself, I die a little inside...

Re:Copyright Theft? FAIL!

[cheekyjohnson]

I don't think it's a very good way to describe it because the situations are quite different. Typically, when someone thinks of theft, they probably think of the loss of physical property, not the loss of a mere idea (or a "right").

And you've just deprived someone of the ability to believe that copyright infringement isn't the exact same thing as theft! You thief!

Re:Copyright Theft? FAIL!

[Professr3]

The copyright owner still has the right to distribute his material as he sees fit. You're merely obtaining the material through a side channel. Do you think the copyright owner wakes up one morning and says, "Gee, I'd really like to sell this material to you, but someone downloaded it on the internet. This means I no longer have rights to distribute my material, so I can't sell it to you. Sorry! Woe is me!"

That doesn't mean "copyright infringement" is a good thing, but you're going to have to come up with a better argument than that.

Re:Copyright Theft? FAIL!

[king neckbeard]

actually, the right is to STOP others from producing COPIES of a work without the copyright holder's permission. What happens with copyright infringement is that someone produces copies without the holder's permission. They are NOT deprived of that work or even the rights to that work, but instead, have had that right INFRINGED upon.

If you absolutely need to fall back on a comparison to physical property violations, it's much more like trespassing, but it's much better to consider it on it's own merits instead of shoehorning a metaphor in.

Re:Copyright Theft? FAIL!

[Pieroxy]

1. First, you say that if you copy my material I can still sell it. Is it still true if you copy my material and then offer it to the world for free? Because that's basically how P2P networks work. You actually say it in the end of your post, but whenever you download on BitTorrent, you leech as well (that's for most people using BitTorrent, you may have altered your client)

2. Second, I have the right to sell my work, but society grants me something more: I am the only one to have the right to distribute my work. When you take over and distribute it yourself, you kind of deprive me of my exclusivity don't you think?

3. Last, nobody cares if you would have bought it. But if you wouldn't thet you shouldn't have had access to the material. That's the law, plain and simple.

Re:Copyright Theft? FAIL!

[Pieroxy]

The copyright fdoesn't gives you the right to distribute, it gives you THE EXCLUSIVITY to distribute. When some random dude download your stuff and distribute it for free, he doesn't deprive you of the exclusivity? How can you view it that way?

Re:Copyright Theft? FAIL!

[Pieroxy]

If society decides to give someone the exclusivity to something, and then a bunch of dudes do the thing anyways, you're saying the owner still has the exclusivity on that thing? How twisted is that?

Re:Copyright Theft? FAIL!

[Arancaytar]

Bringing your own drink into a movie theater deprives the management from its right to sell you stuff, and benefits from the movie which is subsidized by those side profits. Even if you paid for the movie, you get it cheaper than someone who bought the drink.

I guess that's theft too?

Re:Copyright Theft? FAIL!

[king neckbeard]

If someone trespasses on your land (and thus violates your right to exclude), do you lose your ability to stop other people from trespassing on your land?

Re:Copyright Theft? FAIL!

[king neckbeard]

There is a difference and you know it.

There is also a difference between copyright infringement and theft, and you know that. For the particular question, the right to exclude acts in largely the same way in both trespassing and copyright infringement. It's also similar in many ways to the right to not be assaulted. If I punch you in the face I have assaulted you, and violated your right to not be assaulted. If someone else punches you in the face, they have also violated your right to not be assaulted. Even if a hundred people punch you in the face, any further assault is going to be a violation of your rights. It's a bit awkward to think of it this way, but you have the right to exclude yourself from acts of assault. If "a bunch of dudes" assault you anyways, you still have the right to exclude people from assaulting you. Now, please don't think I'm saying that copyright infringement is assault or is similar outside of violation of the right not resulting in the loss of the right. Copyright infringement is copyright infringement, and claiming it to be anything else is almost certainly a bad idea.

You getting an illegal copy would not make too much damage, but you distributing the copy makes a lot of damage because you are enabling others to get a copy. Furthermore, due to the very nature of BT, the downloaders are also the uploaders, therefore they are the infringers.

True, but mathematically, the peers average 1 copy downloaded and 1 copy uploaded, and they are only halfway responsible for that traffic, making them, on average, responsible for the creation of 1 illicit copy

Most of the copyright violators would actually pay for the work, they don't because it is easier to download!

You're going to need a citation for that, as most of the studies I've seen show that those that illegally download end up having more than they could afford to acquire legally. Your wording does seem to indicate a major part of the underlying cause, though, as illicit channels often provide a better, easier product than legitimate channels. If legitimate channels made it is easier for consumers to get what they want, copyright infringement would likely decline or at least not grow as quickly.

Re:Copyright Theft? FAIL!

[AmonTheMetalhead]

1) When you download using bittorrent you aren't also leeching but also seeding. Leeching means downloading something without uploading much/anything in place.
Furthermore, despite the fact that all music is available to me through illegal channels, I still buy loads of music, even more so then before it was feasible to download anything.
The ability to access loads of music has given me the opportunity to sample a lot more music then radio alone allowed.

2) Piracy will deprive you of exclusivity to distribute, but so does broadcasting.

3) Broadcasting means people have access to your work beyond your control.

Re:Copyright Theft? FAIL!

[EuclideanSilence]

Copyright infringement: Deprive the copyright owner of his right to distribute his material as he see fit.

Isn't that really just "deprive the copyright owner of the ability to deprive others of the ability to copy information" ? Either way, it's not a right since the government isn't a party to the transaction, merely an arbiter. It's just a simple law, not all laws are rights.

Re:Copyright Theft? FAIL!

[Dog-Cow]

Once you exercise your right to exclusivity (i.e. you give someone a copy), you have lost your exclusivity, according to your reasoning. If you think about it a little, you will realize that it doesn't matter how a second party obtains a copy; the exclusivity is the same.

Re:Copyright Theft? FAIL!

[Dog-Cow]

If a buy a car and turn around and sell it, that sale is not called theft. If I steal a car and turn around and sell it, that sale is not called theft. (Sale of stolen property is not, in and of itself, theft).

Doing the same with an electronic copy of a song, book or movie does not magically turn the sale (or gift) into theft. It is what it has always been -- infringement of the copyright.

Please remove from your mind the idea that a lost sale is theft. That is logically unsupportable. To paraphrase the sig of another /. poster, you now owe me millions of dollars because you haven't bought my iOS app!

Re:Copyright Theft? FAIL!

[Pieroxy]

If you read both my posts carefully, you will see that I am not talking about lost sales. At all. So maybe you answered to the wrong person...

Re:Copyright Theft? FAIL!

[Pieroxy]

The usual argument is that infringement is not theft because it doesn't deprive the IP owner of anything. I'm merely trying to point out that it's not true.

Re:Copyright Theft? FAIL!

[Pieroxy]

You're telling me that downloading stuff from a place you know is not legal is not against the law?

In other words, if a law enforcement agency came to your house, found 1000TB of movies on your hard drive and you couldn't produce a proof of purchase for any of them, you wouldn't be in trouble ?

Laws seems to be different in your country than in mine. My mistake.

Re:Copyright Theft? FAIL!

[calmofthestorm]

You're thinking of patents.

Re:Copyright Theft? FAIL!

[Pieroxy]

1) You still buy music. Fine. This is completely besides the point though.

2) Sure. Not all artists choose to broadcast, so I fail to see what that proves... If the artist chooses to broadcast, it doesn't deprive the artist of the ability to choose so, since he just did !

3) See #2

Re:Copyright Theft? FAIL!

[trytoguess]

Yes, people DO get it. Now do you get that people use the word theft because they wish to stretch the definition of the word for whatever reason (exaggeration, to empathize, emotional appeal, belief that copyright violation deprive enough to equal theft, etc). It's not a case of stupidity, just yet another case of where language is perhaps too mutable.

Re:Copyright Theft? FAIL!

[Sique]

Ethically, there is also little difference between the other examples I mentioned and theft. In all cases one causes damages to others for personal gain.
But that's exactly the point! If you label all cases of "causing damages to other people for personal gain" as theft, then the special case for theft (removing an object out of the reach of the rightful owner without his consent to use it yourself) needs another name.

Re:Copyright Theft? FAIL!

[Sique]

The main difference for me is that something that was stolen can used by the new owner the same way than the old, rightful owner could have used it.
If I steal a car, I can drive it as its rightful owner could drive it. If I steal money, I can go shopping or put it in a savings account as the rightful owner could have done.
But if I infringe on someone's copyright by unlicensed copying, I can not use it as the copyright holder could. I can not sublicense it for instance.
There are types of copyright infringement where sublicensing would be possible (e.g. plagiarism), but to create a plagiat, I have at least to create a little myself, so the original copyright owner cannot sell my plagiat as his own work, he can only demand the erasing of the plagiat.
So neither unlicensed copying nor plagiarism (as two main types of copyright infringement) are similar to theft in that way that the object can be used by either party as if the party was the rightful owner.

Re:Copyright Theft? FAIL!

[king neckbeard]

You are forgetting that copyright law includes compulsory licensing. For example, I can record a cover of any song that has already been released, and so long as I pay a predetermined royalty and meet a few other statutory requirements, I can distribute my cover of that work (which includes distributing the composition) even if the original artist absolutely despises my rendition. The author of the composition doesn't have the right to control distribution of covers after an authorized recording has been performed.

Re:Copyright Theft? FAIL!

[Professr3]

Another thing to think about: Let's say some random dude downloads a content provider's work, and, by your argument, deprives said provider of exclusivity. At that point, the exclusivity is gone, so what further crime remains if *I* download the work?

Are you going to make the case for "levels of exclusivity"? If so, how will you objectively define those levels, and how many copies will it take to get to "level zero"?

Headlines

[TemperedAlchemist]

RIAA gets their way, ISPs forced to shut down from substantial losses.

Re:Headlines

[thefatchuckster]

if AFACT gets some kind of win in the High Court, the best it can hope for is the challenged legal issue to go back to the Supreme Court in WA for further consideration. Likelihood of the entire case being thrown out is is highly unlikely in the extreme given that it has passed muster at trial and at appeal.

So again the victims are left out

[Errol backfiring]

The people who can have their internet connection ended without trial are of course no party in such cases. Silly me. How could they?

Re:So again the victims are left out

[Cimexus]

No ... there ARE no victims ... yet. That's what the case is about.

AFACT tried to make iiNet disconnect its users. iiNet refused (hence no victims). AFACT took iiNet to court. If iiNet lose, then yes there may be victims in the future. But as of yet, the end users of iiNet's service haven't suffered anything and hence aren't party to the case.

Gah

[freman]

How much money have they wasted on this... how much money has it got them back?

Re:Gah

[sgt scrub]

AFACT hasn't waisted any of their own money. All of it, so far, has been tax payer funded. If they loose this, the MAFIAA will have to pay.

Re:Copyright Theft? TROLL!

[Gadget_Guy]

Illegal file sharing is copyright INFRINGEMENT, not theft!

What are you, a troll? Nobody mentioned theft until you came along. I just browsed at -1 to make sure I didn't miss something, but only occurence of the word happened in the thread that you started. It wasn't in the article and it wasn't in the original submission.

So what possessed you to become so indignant about the term?

Re:Copyright Theft? TROLL!

[king neckbeard]

AFACT is the Australian Federation Against Copyright Theft

AFACT is desperate and has too much money

[Janacek]

The last judgment against AFACT in the case against iiNet was explained very well by the judge in charge of that trial. This just goes to show that the music industry and the movie industry are desperate to protect their tenuous hold on the music and movie distribution business and have the money to fight all the way to the top.

huh wha

[sgt scrub]

I thought Australia was already AFACT's bitch. Maybe I'm just being profetic, er whatever it is called.

Re:Time flies

[Si]

Thanks for clearing that up.