Media Industry sues ISP because users download

[Humodour]

Late 2009, the media industry lobby here in Australia pissed off a lot of people (especially the Internet and ommunications industries and consumers) by taking one of Australia's biggest and most well-liked ISPs to court over the copyright infringements of its users. Their argument was basically that ISPs had to become police and judges and cut off users they suspect of copyright infringement. Obviously this is a blatant disregard for due process (and indeed iiNet forwarded all copyright infringement alerts it received onto the police - it couldn't take any action directly without court approval, warrants, and that was what the media lobbies took issue with).

 

http://www.smh.com.au/technology/technolog...00204-ne1w.html

 

Well today the court ruled that the media lobby has no right or grounds to demand that service providers take on the extra duties of (basically three strikes rules) that the media lobby wanted, and furthemore the media lobby has to pay iiNet full court fees to compensate them for time and money wasted defending themselves.

 

http://www.smh.com.au/business/iinet-slays...00204-nedw.html

 

Choice quotes from the judge:

 

“In the law of authorization there is a distinction to be drawn of the means of copyright infringement… the mere provision of access to the Internet [does] not authorize infringement.”

 

“iiNet has no control of the BitTorrent system and is not responsible for its use by users…iiNet is not responsible if an iiNet user uses that system to bring about copyright infringement … the law recognizes no positive obligation on any person to protect the copyright of another.”

 

tl;dr version: Internet providers are no more responsible for what their users download than the post office is for what somebody writes or sends in a letter.

Edited February 4, 2010 by Krezack

[Hiro Protagonist]

It's a landmark case and first trial of its kind in the world. I've heard quite a few international people were used in the trial so it appears this may set a precedence in other countries.

 

Here's a short but interesting link showing what happened in court this morning.

 

Full Judgement including summary. Long but very interesting. It includes some interesting chapters on internet protocols and how things work. Also included at the bottom of the judgement are all the films and tv shows that must have been used in the trial.

 

examples:

 

Chapter 61. .torrent file

The term

[Hiro Protagonist]

Edited February 4, 2010 by Hiro Protagonist

[Hurlshort]

Is this like suing a car company because some jackass ran into you?

[Syraxis]

The only crime I see is people uploading music in FLAC.

[Hiro Protagonist]

Exactly. Or suing Ford because a car they sold was used in a Robbery.

[Humodour]

The only crime I see is people uploading music in FLAC.

 

The first thing I do when I buy a new CD is burn it to FLAC. It's lossless, open (no patents or IP infringement to worry about) and awesome. How can you go wrong?

[Humodour]

This bit is interesting, worth a read:

 

But the court ruled while iiNet involvement was necessary for the copyright to be breached, it was the use of BitTorrent software that enabled the breach.

 

"You can breach copyright in two ways. One is by directly breaching it, which the users did; and secondly you can authorise a breach of copyright, which you can sometimes do by putting people in a position where they can breach copyright," Mr Lambrick said.

 

"Now what Australian Federation Against Copyright Theft (AFACT) had argued was that by providing its internet service, iiNet was putting its account holders in a position whereby they could breach copyright directly themselves.

 

"Justice Cowdroy found it wasn't the ISP's system that was responsible for the breach of copyright. It was actually the BitTorrent system which was the means by which copyright was breached."

 

Double blow

In a further blow for content producers, Justice Cowdroy went on to rule that even if iiNet was to be found guilty of the breach, safe harbour provisions meant the ISP could not be sued for damages.

 

"Safe harbour provisions are contained in the Copyright Act, and in essence they provide that even if an ISP is found to have authorised a breach of copyright by its users, an ISP won't be liable for damages if it complies with the conditions of the safe harbour provisions," Mr Lambrick said.

 

"And the broad thrust of those safe harbour provisions is that the ISP must have a policy of terminating the accounts of repeat infringers and reasonably implementing that policy.

 

"Justice Cowdroy went on to find iiNet did in fact have a policy of terminating the accounts of repeat infringers, so even if it was found to have comprised a breach of copyright it wouldn't have been liable for damages."

 

He says the case has the potential to set major precedents in who is responsible for illegal downloads, as Australia's laws in the area reflect that of the US and European Union.

 

"The reason being that this is one of the very few cases involving an ISP who's been sued by a content owner that has actually gone to court, and so it does create a significant international precedent," he said.

 

"Or at least it will create international interest mainly because the US and the European Union have legislation similar to our safe harbour provisions which were based on the US Digital Millennium Copyright Act."

 

http://www.abc.net.au/news/stories/2010/02/04/2810520.htm

 

Note: the 'repeat infringers' mentioned are those who are legally proven by courts and police, not merely suspected by the various media lobbies. This is important considering that the media lobbies often accidentally accuse things like network printers of copyright infringement.

Edited February 4, 2010 by Krezack

[Humodour]

And, not to spam, but one has to wonder why the media industry (which includes all the big-name American media companies as well as Australian ones - don't think they wouldn't do it there) would bring such a clearly unfair case before the court?

 

"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

 

And, not to get off-topic, but this applies just as much to the auto-industry or banks as it does the media industry.

[Hiro Protagonist]

It's interesting to see the commercial TV stations in Sydney didn't have anything about this case but ABC and SBS did. It was the second news story on SBS. I mentioned this case to a couple of colleagues at work and they were like... huh? They knew nothing about this. Clearly, it isn

[Humodour]

It's interesting to see the commercial TV stations in Sydney didn't have anything about this case but ABC and SBS did. It was the second news story on SBS. I mentioned this case to a couple of colleagues at work and they were like... huh? They knew nothing about this. Clearly, it isn

[Walsingham]

Regardless, I think we must face the fact that what this case primarily says is that policing is a responsibility which currently is not present on the internet. There is a huge multi-billion dollar problem with crime that mostly operates through or even in the internet, and at some point it will need to be tackled. The absence of action ... oh who am I kidding? Nothing is going to happen, any more than serious action is taken to tackle organised crime in the physical world. We persist in pretending that all criminals are equal when they blatantly aren't.

[Humodour]

Regardless, I think we must face the fact that what this case primarily says is that policing is a responsibility which currently is not present on the internet. There is a huge multi-billion dollar problem with crime that mostly operates through or even in the internet, and at some point it will need to be tackled. The absence of action ... oh who am I kidding? Nothing is going to happen, any more than serious action is taken to tackle organised crime in the physical world. We persist in pretending that all criminals are equal when they blatantly aren't.

 

OK, I think you almost have a valid point, but I lost interest when you brought up 'organised crime' in a thread about, essentially, individual ignorance/laziness.

[Walsingham]

Regardless, I think we must face the fact that what this case primarily says is that policing is a responsibility which currently is not present on the internet. There is a huge multi-billion dollar problem with crime that mostly operates through or even in the internet, and at some point it will need to be tackled. The absence of action ... oh who am I kidding? Nothing is going to happen, any more than serious action is taken to tackle organised crime in the physical world. We persist in pretending that all criminals are equal when they blatantly aren't.

 

OK, I think you almost have a valid point, but I lost interest when you brought up 'organised crime' in a thread about, essentially, individual ignorance/laziness.

 

Fair enough. However I wasn't alleging that bittorrent is organised crime. By definition it isn't.

[Gorgon]

I would post in this thread, but some mod is going to come by and close it for no clear reason, so what's the point.

 

Some clarification is in order here. We are allowed to talk about piracy, and saying that it's a bad thing is also allowed, i'm just going on precedence here. As soon as one of the radicals show up and argue that file sharing or indeed piracy has no detectible downside however, the mods feel as if we have offended our hosts and summarily close the thread.

 

It would be nice to have something more to go on than feelings.

[Pidesco]

Admitting that you are a pirate is usually the only thing that gets piracy threads instalocked.

[Hurlshort]

I would post in this thread, but some mod is going to come by and close it for no clear reason, so what's the point.

 

Some clarification is in order here. We are allowed to talk about piracy, and saying that it's a bad thing is also allowed, i'm just going on precedence here. As soon as one of the radicals show up and argue that file sharing or indeed piracy has no detectible downside however, the mods feel as if we have offended our hosts and summarily close the thread.

 

It would be nice to have something more to go on than feelings.

 

I'm not sure how this is complicated at all. Piracy is an illegal activity. The same standard would be applied to a thread about illegal drugs. We can discuss the legal issues involved with it, but as soon as folks start promoting use or discussing personal experience, the thread will be shut down.

[Gorgon]

Relating personal experience of drug use would not get a thread shut down.

[Hiro Protagonist]

Yeah I think it's pretty straight forward. This courtcase is Not like the flood gates have now opened and it's open slather to pirate. Nothing has changed here in Australia. If you download you can still be prosecuted. All this court case does is the ISP can't turn off your internet connection because of allegations from an industry lobby body like AFACT saying that you are pirating. AFACT wanted to be the police and go to ISPs and say Person A has been downloading pirated stuff, now turn their internet connection off. The ISPs argued that any copyright infringement that is going on will be forwarded to the Police and they'll let the police follow it up with due process. The ISPs weren't going to go off allegations made by a lobby group and start turning off internet connections left, right and centre.

[Hiro Protagonist]

There was a really good interview with Michael Malone from iiNet on the ABC. Here's a link to the transcript.

 

Interesting to note is this little bit:

 

WHITNEY FITZSIMMONS: Michael Malone, can you tell me what percentage of iiNet's traffic goes through BitTorrent?

 

MICHAEL MALONE: We don't know.

 

WHITNEY FITZSIMMONS: But didn't you say in the case that it's at least 50 per cent, if not more?

 

MICHAEL MALONE: No. We've got statistics from global sources that say that that's what's suggested across US networks. That's dropped, by the way. Again, looking back to the (inaudible) - since legitimate versions were made available in the US, that's dropped from 50 per cent down to about 30 per cent. So as long as you give customers an alternative which is legitimate, they take advantage of it.

 

WHITNEY FITZSIMMONS: So you have no way of telling how much of your traffic is going through BitTorrent?

 

MICHAEL MALONE: We could look at what's being used by BitTorrent, which we haven't done, but we could, however that still wouldn't tell us what's illegitimate.

 

WHITNEY FITZSIMMONS: But it would suggest that a large amount is illegal because a lot of people use BitTorrent to illegally download.

 

MICHAEL MALONE: But a lot of people use BitTorrent for legitimate purposes. There's applications such as World of Warcraft, which you're probably familiar with, that uses BitTorrent. Now that's transparent to World of Warcraft users, but it's a perfectly legal usage of it. If you're looking at things like using Linux to do your updates through, that uses BitTorrent. Democracy for IPTV uses BitTorrent. These are perfectly legitimate versions of BitTorrent, and we can't look into those packets and say what was legal and what was not.

 

WHITNEY FITZSIMMONS: So, are you sensing some sort of reluctance from the entertainment providers that they're unwilling to come to the table and do some sort of deal with you?

 

MICHAEL MALONE: Most of the issue

[Tigranes]

Relating personal experience of drug use would not get a thread shut down.

 

Probably would, if it was coke or something. We've just never had that come up.

 

But yes, Hiro is very right. Not all of piracy, but a significant portion of media piracy has to do with convenience, availability and quality of service (closely related is the overinflated sense of entitlement that does exist to a degree amongst consumers). Waiting for a delayed release is a lot harder when pirated copies are already there. Bothering with idiotic DRM is a lot harder when pirated copies are superior. Dealing with weird logins and streaming inconveniences is a lot harder when pirated copies are easier to use.

 

Wonder if BitTorrent is going to get a bit more high profile now in the region after the case - I know plenty of people who have no idea what it is.

[Walsingham]

I don't condone piracy at all, but I do think that if we are being adult about the problem we have to accept that content must be more accessible*, quicker, easier to find, and ultimately cheaper. I don't think that's going to stifle content, because content providers often only see a thin percentage of total income. All that has to happen is for the industry to accept a slightly lower return.

 

Of course, the big firms won't because no-one in a big firm of any kind has any balls, and will therefore never put the option on the table.

 

* A good example of this is the BBC. I have several favourite shows which they have failed to release any DVDs for. I have quite literally no way to pay for the content, even though I want to.

[Raithe]

It might be me, but I do find it slightly odd some of the twists of legality.

 

If tv show is shown in England, I'm legally allowed to have my pc hooked up to record it.. and keep it to watch as I want from my pc.

If the show happens to have been shown in America and doesn't get released in England for another 6 months.. it's illegal to download it across file share to my pc to watch it...

Since I have to pay for cable/satellite/tv licence regardless it's always puzzled me exactly why there's that legal split..

[Hurlshort]

Are you paying for an American cable/satellite/tv license? Because that's where I see the big difference there.

 

I think there has been a lot of progress over the years with offering media for reasonable prices over the internet. Many networks put shows up for streaming, hulu is a fantastic service for free, and services like Netflix offer a ton of content and are constantly working to add more. Heck, I just subscribed to Napster for $5 a month and I get unlimited access to a huge library of music.

 

So there really are plenty of legitimate options out there. You might have to go without a certain show here or there. It's a bummer, but that is life. This is not anything we can't live without.

[Pidesco]

Are you paying for an American cable/satellite/tv license? Because that's where I see the big difference there.

 

I think there has been a lot of progress over the years with offering media for reasonable prices over the internet. Many networks put shows up for streaming, hulu is a fantastic service for free, and services like Netflix offer a ton of content and are constantly working to add more. Heck, I just subscribed to Napster for $5 a month and I get unlimited access to a huge library of music.

 

So there really are plenty of legitimate options out there. You might have to go without a certain show here or there. It's a bummer, but that is life. This is not anything we can't live without.

 

But you are in the States. In the rest of the world region locking affects practically everything, and inevitably leads to greater piracy.