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Feb 5, 2010

iiNet decision a slapdown for AFACT, movie industry

After yesterday’s Federal Court decision clearing iiNet of responsibility for copyright infringement by their customers, the Australian Federation Against Copyright theft is considering its next steps.


After yesterday’s Federal Court decision clearing iiNet of responsibility for copyright infringement by their customers, the Australian Federation Against Copyright theft is considering its next steps.

As well they might. Woven through Justice Dennis Cowdroy’s ruling is a comprehensive slapdown not only of AFACT’s conduct in this case but, I believe, the movie industry’s whole approach of, as tech blog Ars Technica put it, forcing ISPs to play copyright cop.

As Crikey reported, Justice Cowdroy noted “The exact nature of the relationship between the applicants and AFACT is not clear”. But that’s just the beginning of his criticism.

“The AFACT notifications [to iiNet of alleged copyright infringement] are not statutory declarations, nor do they have any statutory basis,” he said.

“The tone of the letter …  seeks to imply that AFACT is some form of quasi-statutory body whose requests required compliance.”

The applicants also appeared to be trying to equate high-volume internet use with copyright infringing behaviour, something Justice Cowdroy described as “one of the more adventurous submissions”.

He also noted that AFACT “blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright Theft.”

Justice Cowdroy rejected attacks on iiNet CEO Michael Malone’s credit as a witness, describing his cross-examination as “gruelling and unnecessarily hostile” and “intemperate”.

“Merely because the views expressed by Mr Malone did not accord with the interests of the applicants does not render those views ‘extreme’,” he said. “Such posture tended to convolute these proceedings.

“The applicants appear to premise their submissions on a somewhat binary view of the world whereby failure to do all that is requested and possible to co-operate with copyright owners to stop infringement occurring, constitutes approval of copyright infringement. Such view is not the law. It is possible to be neutral. It is possible to prefer one’s own interests to those of the copyright owners.”

There’s more in this handy compilation on Melbourne lawyer Robert Corr’s personal blog.

“Obviously AFACT is disappointed by the decision,” their spokesperson told Crikey this morning. “They are still reviewing the judgement and they will respond in due course.

“AFACT’s membership has always been clearly identified on their website,” they said.

“The judgement makes clear that infringements were occurring on a large scale, that iiNet were aware of these infringements and did not take any action to stop or deter these infringements.”

However, Justice Cowdroy did rule, effectively, that chasing copyright infringers isn’t an ISP’s job. Even if he had found that iiNet had “authorised” the infringing acts of its customers they would still, as a carriage service provider, have “safe harbour” under Division 2AA of Part V of the Copyright Act.

Yesterday AFACT chief executive Neil Gane said in a statement, “We are confident that the Government does not intend a policy outcome where rampant copyright infringement is allowed to continue unaddressed and unabated.”

Globally, the movie and music industry has in parallel been pursuing another strategy: persuading governments to introduce “three strikes and you’re off the internet” laws, requiring ISPs to act upon infringement notices such as AFACT’s.

New Zealand has re-introduced  such legislation for the second time. The first was overturned following public outcry over the law’s “guilt by allegation” stance. France has already passed revised law after the first version was ruled unconstitutional. And they’re not alone.

While there have been concerns that three-strikes laws were on the agenda at the secretive Anti-Counterfeiting Trade Agreement (ACTA) negotiations in Mexico, a spokesperson for the Department of Foreign Affairs and Trade has denied any such idea  was on the table.

Nevertheless, in March last year communications minister Senator Stephen Conroy derided iiNet’s defence as something that “belongs in a Yes Minister episode”. While Senator Conroy has so far only said that his office would examine the iiNet finding, can it be inferred that he would smile upon a three-strikes law?

Or is that too heady for an election year?

Disclosure: Stilgherrian is a customer of iiNet, as well as Telstra and Virgin Mobile. He has not communicated with iiNet about this case, nor they with him.


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11 thoughts on “iiNet decision a slapdown for AFACT, movie industry

  1. meski

    Conroy has annoyed Internet users enough without proposing a 3 strikes law. Voters might apply a 3 strikes law to him (and his party)

  2. Tom McLoughlin

    That would be tortious, not tortuous. An old fashioned legal term meaning roughly a civil law matter, as distinct from a criminal matter.


    The tricky bit in terms of business ethics I suspect is that the ISP is getting the benefit of the illegal business, without the responsibility to police illegal downloads.

    (In my example in a comment yesterday of the ISP as ‘local council sports venue’ and downloaders as ‘illegal drinkers’, it might be more akin to the rowdies paying rent to the council specifically to have that booze up: Council financially benefiting unless the council can honestly say we are at arms length from the perp. I left it out as too complex. Obviously the judge found as a matter of fact the ISP is arms length.)

  3. Gavin Moodie

    Publishers have for years got universities to pay fees cos people, mostly their students, use university photocopy machines to copy publishers’ works. The publishers survey universities periodically to determine how much is being copied of what. Presumably the film studios would like a similar arrangement with internet service providers.

  4. Stilgherrian

    @Tom McLoughlin: You know, I thought “tortuous” looked wrong, but that’s a direct copy-and-paste from the actual judgement. I guess even judge’s staff get caught by spell-check errors.

    @Gavin Moodie: The question becomes, then, how you sample the ISP’s customer’s internet usage without it becoming an illegal telecommunications intercept. How you actually implement it, when all we need to do is encrypt the data, rendering such monitoring impossible to all but the more advanced intelligence agencies?

    And, for that matter, how do you sell politically the idea of the government, or the ISP, or the movie industry, monitoring all of your communications in case it’s infringing copyright? It’d be a very brave communications minister who proposed that!

    Of course, if you first set up a plan to monitor internet use for child pornography, or for terrorist material, well, it’s be easier to scope-creep that technology once it was in place…

  5. meski

    He’s already admitted that the monitor/filter program he’s proposing won’t work for bitTorrent etc. And bitTorrent protocol handshaking already offers basic encryption.

  6. Migraine

    “The applicants appear to premise their submissions on a somewhat binary view of the world whereby failure to do all that is requested and possible to co-operate with copyright owners to stop infringement occurring, constitutes approval of copyright infringement.”

    The good Senator Conroy seems to have a similarly binary view re oppostion to compulsory internet filtering. I hope he is reading the judgement with care. And an open mind.

  7. Martin Barry

    I like that the judgement covers 3 things:

    – The judge made it clear that defending copyright was the job of the copyright holder working with the appropriate authorities.

    – Michael Malone (iiNet) agreed that AFACT’s evidence of infringement was “compelling” i.e. was worth a deeper look by the appropriate third party with jurisdiction.

    – The judge agreed that AFACT’s evidence of infringement was conclusive of infringement.

    The clear path for AFACT is not to appeal but to devise a system which takes their evidence to the appropriate authorities. If that means filing “John Doe” court cases to discover the identity of ISP subscribers who they can then sue, so be it.

  8. John

    Unfortunately, I fear our Sen Conroy will beaver away and create a new tranche of laws to plug his friends legal gap.

    Until then…..

  9. ggm

    @john, Conroy wont’ “beaver away” at anything. the filter won’t let him..

  10. meski

    Are ISPs obligated to keep the records of their DHCP servers? And for how long?

  11. Man of Straw

    ISP’s are a part of the information infrastructure.

    One analogy (overused perhaps?) is that of the road system, the roads being the cables and the cars being the user’s PC or phone. The RTA or local council is not taken to court for the misbehaviour of a private driver caught speeding, are they? They do, however, have to absorb the cost of repairing the damage caused by burning car-wreckage…

    Large data usage is NOT equivalent to copyright-infringing downloads – all that data the banks send around several times a day (to still take 3 days to clear a cheque!?) would otherwise be evidence they are kingpins of piracy!

    The obvious legal avenue open to AFACT – prosecution of individual infringers through the AFP – would be very bad publicity, and the big-name media interests _really_ don’t want to lose any more market share to independant creators. Indie Media has already made deep inroads in that market using newfangled ways of promotion distribution and collaboration – which the dinosaurs are less adept at keeping abreast of, it seems. If it were not for commercial TV/radio they would be extinct already.

    Go to mp3.com.au and listen to some good (well… some of it is!) music released online by the artists themselves – and if you like it enough go see them in concert!
    Go to gutenberg.net.au and download some actual classics to read (your eBook reader does display .TXT files, right? No? U wuz rippd..) – or do the math and figure out how many reprints you could actually buy for the cost of a new reader every X years.
    Go to uTube and watch some documentaries or short films. If the film-maker’s work is good enough maybe you would consider seeing their work at the movies or agitating for it to appear on channel 10?

    But… always be prepared to pay something, somewhere for things of quality and high production costs. Avatar would never have been made the way it was without some serious private money from it’s backers.

    There’s plenty of content already free-to-air online. Other than large amounts of seed-capital and a behemoth of a promotions engine what do the old-guard media corporations really have to offer us? They (using the promotion engine) ramp up our desire for their product – not necessarily the desire to pay them for it. If the cost-desire equation results in high cost AND high desire – people will try to find ways around it.

    In that sense they are victims of their own success.

    It is undeniable that ISP’s do profit from the transmission (and some data plans would have you pay many times over the RRP of a movie on downloaded bytes alone!) of works under copyright. It would seem fair that some of this money goes to the creators of the content that is being downloaded. Stilgherrian rightly points out that the issue then becomes one of monitoring what is downloaded – something that for individuals I disagree with on privacy issues.

    So it seems that we have a stark choice: enjoy our privacy of transmission, but watch as our creative content makers are forced to decide between the love (continuing to create) and the money (changing career to, say, banking)….
    lose our privacy (and other things, such as an unencumbered network or access to software solutions that have utility outside of avoiding copyright-infringement detection) for the sake of the incomes of these artists (actually mostly the incomes of SonyBMG etc.)

    I will ignore the wiretap-based option because degrading the personal-rights of many to uphold the financial-rights of a few is not my philosophy. Content creators of all types enrich our lives on a daily basis, and certainly deserve to make a living doing so.

    The only vaguely equitable solution I can think of is a “content tax” added to your ISP bill (or taken in actual tax, again a political deathwish) – based on the assumption that you are an average user who downloads an average number of copyrighted works in a bill cycle.
    The case would of course be made that “I don’t download anything, why should I pay for others to do so?” – but a counter argument in generic terms can be made also (eg while you have not committed a crime or been a victim of one, you are still OK with paying the police force from the public purse).
    The revenue collected could be given to the content-creators/owners proportional to how frequently their works are accessed.
    The numbers and proportions are tricky but not impossible to obtain data on. Aggregated search queries for things like “Twilight DVDrip download”, total usage statistics (especially broken down by filesize), and properly worded and de-identified surveys/polls (eg by AC Nielson or the ABS) would go a long way towards this without any individual being wiretapped.

    Those on very low-bandwidth access contracts, or internally-overseen/filtered access (larger businesses, charities and government bodies) could have justification for exemption from this charge.

    Basically this is the same idea as public and university libraries – and I find it darkly amusing that once politicians and their lobbyists (eg AFACT) got into this it all turned into football.

    The numbers probably wont add up to every downloaded album being worth 30 dollars to Sony, but the idea is to compensate for _actual_ revenue lost to piracy. This means we should not take only BigContent(tm)’s word for it regarding what it’s worth.
    That is an issue in itself (and a complex one – If there were NO other option to accessing content other than to purchase your own personal copy, you can bet there would be far fewer people actually viewing it – how many people reading this have delayed an expensive trip to the cinema until “it’s out on video”?).

    One thing about the internet though (that cannot be emphasised enough in regards to governments, stuck as they are in the nation-state) is that in the sea of ideas, Australia is Not an Island. So let’s not kid ourselves that what we do can be kept in isolation, and needs to take the state-of-everywhere-else into consideration.
    So a local lobby group known as AFACT should really be a subsidiary of the United Nations Federation Against Copyright Theft – a much more pleasingly Orwellian acronym, no?

    I could probably write a book on this (titled: Intellectual Property of The Wheel) but if it ever became popular it would just be scanned and downloaded……

    PS I would have thought Copyright Theft would be closer to PLAGIARISM than unauthorised reproduction….. The copyright itself hasn’t been taken away from the rights-holder – just the opportunity to make money from that particular reproduction of it.

    PPS: (semi)rhetorical question time – If, as a private purchaser of copyrighted material, I am allowed to make ONE backup copy for my own personal archive (I do this to keep my originals out of my mucky player) – what if the purchase was made jointly? A starting example would be a married couple buying a CD on their joint credit card – are they allowed to make a copy each, or only one between the two of them?
    The next example would be taking a copy from a book borrowed from a public library (doesn’t sound legal although they do have photocopiers conveniently at hand)…
    Followed on by the taking of an archival copy of a TV show from ABC iView (of course it’s possible)…..

    Which is not that far away from where we are at today – movies books and albums all being downloaded as desired, at least by tech-savvy freetards if not the average Joe.


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