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Australian ISP Wins Case Against Movie Studios
trawg writes "The Australian High Court has just dismissed an appeal by Australian and American media companies against ISP iiNet, in what will hopefully be the final step in an ongoing copyright lawsuit drama. The Court noted that 'iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright.' Ultimately, the court has held that iiNet's inactivity to act on infringement notices didn't imply any sort of authorization of that infringement by their customers. Good news for Australians as a clear line has been drawn that will help ensure ISPs don't have to bear the cost of policing their customers."
C'mon, surely this can't be true? Stuff like this *never* happens. This demonstrates a clear failure of the studio's lawyering and lobbying. They need to find more lawyers immediately and seriously up their game. If this sort of common sense is allowed to take hold, who knows what may happen.
As an Australian, this is a big relief. iiNet are actually a pretty good ISP too: great network, good service, reasonable prices.
The trouble is, when the courts smack down the media companies, the government steps in with new legislation, since they are in the back pocket of the media companies. Stephen Conroy, Labor's communication minister has already signalled that when iiNet loses, he's going to do just that.
I'm gladdened that the courts saw the logical fallacy of allowing one corporation legal rights to force another corporation to lose profits through direct cost or degradation of service based on a failure to adapt to market changes.
While i agree there is value being lost through piracy it just seems the courts were the easier path to take instead of adaptation and new delivery methods. That might require some planning and work after all.
I'm in 100% agreement with Gabe Newell from Valve that piracy is largely a service problem.
But since these fellows at the RIAA and the MPAA seem hell bent on using the copyright laws like a club to beat the ISPs and potential customers over the head with in order to get their way, will anything change?
Here's the Judgement Summary: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf
Here's the full Judgement: http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
In the full judgement, the Justices systematically (and unanimously!) take apart the assertion that iiNet had "authorised" infringement just because they refused to kowtow to demands that they police their users for the copyright lobby. They point out that it's not appropriate (or legal) for an ISP to monitor or police their users' private traffic at the demand of another private entity.
Further, they held that the notices of infringement (aka shakedown letters that most ISPs meekly pass along) "did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts".
And at the very end, after the Justices explicitly provide some useful closing of loopholes by carefully passing over the legislation and common law cited by the copyright lobby... they order said lobby to pay all iiNet's costs.
Glorious.
Western governments will not let their populations have a free and open internet without a fight.
The two main courses now of action seem to be: the media companies start offering media in a reasonable format in a reasonable timeframe at a reasonable price, or they lobby government and pursue backroom deals. The first is supported by many and has been proven to work fairly well with PC games by Valve with Steam, and iiNet has said it would be happy to help with this. The second however is much more in character, despite having been proven fairly well to not work.
Also, very glad to see that the High court awarded costs in iiNet's favour - translation, the MAFIAA have to pay all of iiNet's lawyers bill!!!
... wait, what?
Good. The copyright cartels are like negligent parents: they think all the rest of society should bear their responsibility for them.
Can't be bothered to be involved in your kids' life and pay attention to what they watch and what games they play? No problem! Just censor everything! Can't be bothered to do your own discovery and catch your own filesharers? No problem! Just offload the task to the ISPs without compensating them!
Tired, tired, TIRED of this bullshit. About damned time a court had some sense. Guess the MAFIAA didn't bribe^H donate to the right politicians this time?
And a loud roar came forth across all the land, in a voice strangely reminiscent of one Darryl Kerrigan:
Hey. Bad luck. [pause] Ya dickhead. Suffer in your jocks!
Is the phone company to blame if someone plays a song over the phone and someone records it on the other end?
God spoke to me
Also, very glad to see that the High court awarded costs in iiNet's favour - translation, the MAFIAA have to pay all of iiNet's lawyers bill
It is the default in Australia that a losing party will be ordered to pay the winning party's inter-party costs. It helps to inhibit frivolous litigation.
"Oh well, we lost fair and square, let's move on"
They didn't, the lost their original case, their appeal was denied and they took it to the High Court of Australia - pretty much the equivalent of SCOTUS in the US. There really isn't anywhere further for them to take this case.
Sure, they might try down a parallel path with a similar objective, but a wonderful side effect of taking it to the High Court is that now pretty much any similar path they try will still be in the shadow of this ruling - making it greatly more difficult for them to introduce anything remotely similar.
Moved to http://soylentnews.org/. You are invited to join us too!
There is a reasonable technical way to police bit torrent. (watch torrent, determine torrents contents is your intellectual property, get list of IP addresses from the swarm, match those to users via ISP) But now the studios have to subpoena the ISPs with enough details to satisfy the ISPs legal departments then sue or prosecute the end users. The studio wanted the system where they got to shortcut the legal system at the expense of the ISP to punish the end user.
Basically the court said "If it's worth doing, it's worth doing properly. If it ain't worth doing, stop doing it."
A sig is placed here
To display how futile
English Haiku is
I wouldn't have stuck with Netspace for 8 years if they weren't fantastic. It was a terrible shame to see them get so badly stuffed up.
On leaving them, they sent me a survey to fill out to tell them why I'd left, the link for which didn't work, so I emailed the customer service people back, cc'ing Michael Malone, explaining how as a long term customer of Netspace that it was with regret I was leaving after 8 years as a customer, but in 4 paragraphs exactly how they drove me away.
The next morning, I got a phone call from a senior customer service person at iiNet, who apologised for everything that happened and gave me an undertaking that iiNet were going to endeavour to make sure what had happened to me didn't happen with their future acquisitions. Whilst it was too late for me as I'd already churned away, I hope that they stuck to their word.
... wait, what?
Yes, iiNet won and the studios lost. Now here's the reaction from the studos' media representative (http://www.abc.net.au/news/2012-04-20/iinet-wins-download-case/3962442):
----
AFACT [*] managing director Neil Gane said the group would lobby for changes to copyright laws following the decision.
"Now that we have taken this issue to the highest court in the land, it is time for government to act," Mr Gane said.
"The Government has always maintained that content is the key driver of digital economic growth. I'm sure the Government would not want copyright infringement to continue unabated across Australian networks, especially with the National Broadband Network soon to be rolled out."
----
[*] AFACT is the Australian equivalent of the RIAA/MPAA, or rather, as some Wikileaks memos have shown, they are the Australian arm of the RIAA/MPAA, the control directly coming from the States.
So, the copyright industry's attitude is that "if what we demand is unlawful, we will lobby/bribe/force the government to change the law to our favour". Knowing the Australian parliament, probably they will succeed in a reasonably short time.
While I'm sure studios don't mind that much. They are playing a bigger game than just this case. The certainty means that any lobbying for change of law cannot be stifled by claims that the current law is adequate (for what they want). So whereas law makers could have said there was no need to change the law to achieve what the studios want, the certainty of the High Court ruling shows that the current law does not allow them to easily pursue the ISP. So expect pressure on the federal government for a law change.
Here's the problem for me personally:
Where I currently live (in the US), I have three options for internet:
1) Dial-up.
2) Satellite.
3) Time Warner.
Since I require use of the internet for more than email, 1) is out.
Since I can't afford $90/month, 2) is out.
But with 3), the ISP is owned by the copyright holders. That is, the same company that owns New Line, Time Magazine, HBO, TBS, The CW, Warner Bros, Cartoon Network, CNN, DC Comics, Castle Rock Entertainment, and others.
There's a whole slew of ideas that were once considered so important they were taken for granted but have fallen out so thoroughly that people today barely even think of them at all.
For instance, thirty years ago there was a consensus that one company shouldn't control huge swaths of the media. It was understood that even the appearance of the conflict of interest was not to be tolerated.
You'll get blank stares these days if you bring them up.
Play Command HQ online
Perhaps the real solution is to have the 'AFACT' actually live in Australia for several months... if they survive - http://www.theaustralian.com.au/archive/travel-old/australian-animals-show-theyre-not-so-cute-and-cuddly-after-all/story-e6frg8ro-1226331660816 - then perhaps they can try carrying on with this crap.
For those who are not aware, AFACT stands for 'Australian Federation Against Copyright Theft' yet most of the companies behind AFACT are American. It would be better named American Federation Against Copyright Theft.
I am not a lawyer, but I am surprised that no one has challenged the name of this business.. for example with the intent to force them to change it from 'Australian' to 'American' as right now they could well be deemed to be passing off in a deliberate attempt to deceive the public - which would be classified as a type of fraud.
A view from a lawyer or legal professional on this would be useful if anyone out there cares to comment..
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They only let it get as free as it is because the internet snuck up on them. No-one in government really planned the civilian growth of the internet... it just happened. If the governments of any world were allowed a do-over, you can be sure they'd make it more centralised, controlled and policeable. For the children, naturally.