Thursday, March 26. 2009In Retrospect; A Company As Dumb As iinet......John Linton wasn't the best "choice" to "defend the ISP Industry" against the combined might of the entertainment industry....at least if the various statements in this article are anywhere close to the truth: I have previously expressed my views on the stupidity of comments about illegal downloading via P2P processes made to the media by the CEO and other executives of iinet but I really didn't expect a competent SC to mouth slightly watered down versions of those mixtures of arrogance and stupidity to a judge. Now, I understand that Telstra et alia are almost certainly both 'running' and partially funding iinet's court room travails on behalf of their cozy cartel and therefore you would expect a degree of unreality and crazy denial of self evident facts but.......really some of the statements, assuming they are correctly reported are just plain "cloud cuckoo land". For instance if this is how iinet's SC is going to run his case then they are doomed to not only lose but seen to have acted both irresponsibly and dishonestly: "iiNet's barrister, Richard Cobden, SC, said the ISP was not required to act on a "mere allegation of copyright infringement" Exetel, like many other ISPs, received the AFACT infringement notices and they weren't allegations; they contained exact and specific information about the title downloaded, times, IP addresses and actual content. Any rational and vaguely knowledgeable person or entity receiving such a notice would be in no doubt that the "alleged" copy right infringement was in deed factual and exact - if they did in fact have any doubts a simple check of their own logs would have removed that. Attempting to run an argument that it is an unsupported allegation is just plain nonsense. Similarly trying to run this argument shows the level of "straw clutching" they are indulging in: "They also claimed that, because files are broken up into tiny "packets" before being sent over BitTorrent, this may not be enough to suggest a "substantial portion" of a copyrighted file was distributed." How patently ridiculous and so totally dishonest! And, should they wish to be taken seriously on that claim, how totally embarrassing for an ISP (which presumably knows how IP traffic is routed) to try and say that P2P processes are so unreliable that they don't actually deliver complete files!!! It's a pretty clear indication that iinet have no defence and that their SC is either struggling to understand what is going on, being deliberately mislead on the actual situation or is hoping that all the technical jargon will not be understood by Cowdroy and they can somehow obscure the situation to the point that iinet will escape with a slap on the wrist 'settlement'. It seems to me it was only iinets deluded sense of self importance that has caused them to be selected for the expenditure of large amounts of money and management time defending the indefensible. It was Michael Malone's pointless personal hubris (rather than the arrogance which is the more usual stock in trade of his 'co-defendants') that sees them in 'the dock' at all - it could have so easily been avoided and so easily been avoided without any effect on their business at all using the quite simple processes available to both iinet and iinet's customers. How would this have occurred? It's so simple I am amazed that iinet chose their brash stupidity approach rather than the sensible, and glaringly obvious, business approach that was available to them. Which was: 1) on-send the notice to the customer whose IP is mentioned in the infringement notice stating that (as requested) if a second or third notice is received from AFACT that their account will be terminated. Total compliance with the AFACT request - problem solved - good corporate citizen - no waste of money and time on court case - no looking like a total goose in the eyes of the Australian internet user community. "but we can't do that because we would lose a lot of customers?" (the real fear/reason for the current 'denials') 2) Include in the notice sent to the alleged infringing copyright customer the innocuous comment that you understand that the IP cited may actually not have been being used by the customer at the time of the infringement as it is dynamically allocated and if that is the case then you suggest that they log their modem off and then log it back on to acquire a different IP address. There can then be no second notice sent to the original alleged 'infringer'. Not totally in the spirit of the respect for other people's property rights but well within the legal processes of assigning dynamic IPs under which iinet has operated for its entire existence and also well before any copyright notices based on IP addresses existed so no possibility of being accused of anything AFACT might have in mind. But why take that eminently co-operative, responsible and painless way of dealing with a difficult business situation when you can grandstand in the media that: "iiNet has previously said that the case was "like suing the electricity company for things people do with their electricity". What a dimwit Malone must be (or whoever used him as a cat's paw to speak those truly dumb words) to use such a stupidly flawed and inapposite analogy. If Malone et alia truly don't understand the concepts of corporate responsibility to that extent you have to wonder who ties their shoe laces for them each day when they get dressed. Hopefully someone will point out to iinet's 'legal team' that they can call off the case apologise to AFACT for not taking the requested actions more expeditiously and get away with a notional costs settlement. They can then write the few lines of code that will on send any future copyright infringement notice together with whatever words they wish to include that will re-assure their end users about the ongoing security of provision of their service. The incorrigible thieves will not be discouraged but it's highly likely that the responsible parents who then realise that they are bringing up their children to be irresponsible thieves and also possibly bringing retribution on themselves will reduce the level of theft of other people's property. So some good will come of this action if only iinet, et alia, stopped behaving so commercially irresponsibly. Then again....hubris exacts a very high price before common sense eventually prevails. ("Whom the God's would destroy, they first make CEO's of pretentious Australian ISPs" - apologies to Euripides) Trackbacks
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I think it is scary that Telstra could be iinet's only real legal hope. They atleast hire enough lawyers to have one intelligent one with a clue that everyone else can get.
At the end of the day it will be interesting as to what the fall out of this case is. Surely AFACT will pressure the govt. into passing on ever more draconian laws/reforms to copyright using the iinet case as 'proof' that they are 'losing' millions to pirates. All in all I can only see a lose-lose for the Australian public, and ISP's in general. Comment (1)
Talking of potential winners then....
.. I convinced another friend to "do the sums" on moving over to Exetel. He ordered ADSL2+ plus phone yesterday and is set to get 2 mobile phone accounts. He tells me he analysed his last Telstra/Bigpond bills..... ... and reckons his overall communications costs will drop from $331 per month to $118 per month with Exetel. ... and with more broadband speed and allowances. ..its nice to spread some good news! Harry. Comment (1)
John, you are confusing the allegation of commiting a crime ("AFACT infringement notices") with an act performed by a user of your network ("specific information about the title downloaded, times, IP addresses and actual content").
Who empowers you (Exetel) to be judge, jury and executioner in determining if these allegations constitute infringement? THIS, IMHO, is what iiNet is on about. Comment (1)
You really mustn't use the hysterical, and totally inaccurate, completely inappropriate and also just plain silly iinet phraseology of being "judge, jury and executioner' - it's a nonsensical attempted comparison.
The AFACT infringement notice (obviously designed by a lawyer to meet the legal needs of the current court action) was not an "allegation" it was a carefully observed and detailed report of an act of copyright infringement. There is absolutely no way it could be described as an "allegation." It was a set of facts. There is also, as I described in my writing, a simple way of dealing with such an exact request which only involves passing the infringement notice to the alleged infringer. Exetel has sent many thousands of such notices to customers over the past five years and I can assure you I can count on one hand the number of recipients who have denied they downloaded the alleged content. All of those people turned out, after further investigation, to actually have downloaded what had been claimed. iinet has made a dog's breakfast of this situation by its stupidity and arrogance and Malone's evident desire to grandstand on every possible occasion. There is NO doubt that if they don't beg for a settlement then, in the fullness of time, they will almost certainly be found guilty of condoning copyright theft and will have to deal with whatever consequences that brings. I may, of course, be totally wrong - it is irrelevent to me or to Exetel as I am merely writing some personal observations and my views are what I write.......they are not of any value or importance whatsoever. Comments (7)
I acknowledge that passing on infringements is the right thing to do. I think you hit muddy waters when an ISP disconnects a person based on allegations.
I understand that from your point of view John they are a presentation of facts. But it is not for you to decide whether they are guilty or not, you can have the opinion that they are guilty though. I believe most people have an issue with this because any criminal allegation must be heard in court after the presentation of substantial "facts" before they are declared guilty of their crimes. By disconnecting a customer based on letters from some lawyer an ISP is essentially claiming these allegations as true. However an ISP is business, not a court, and a business can choose who it serves, so if an ISP decides that the lawyer is correct then they have every right to disconnect a customer if they so wish (obviously with due warning). But again, that’s the choice of the ISP, not AFACT, and so we churn in the muddy waters until legislation is put in place, or rejected. Comments (3)
You forget that any ISP, if it wished to, can check its logs and verify the accuracy of the AFACT claim (if it wished to expend that amount of time).
You also forget/I didn'y make clear, that of tens of thousands of infringement passed on to customers only a handful have ever been disputed and that of those disputes each one was verified and found to be valid. There is actually no reason not to accept the copyright owner's claim as being valid and, if the "offender" was genuinely not 'guilty' the first time what would you estimate the cahnaces of him not being gulity on three successive occasions? Comments (7)
I'm not claiming that AFACT isn't correct, clearly they wouldn't make the claims without substantial evidence which an ISP can verify.
I'm just saying that criminal claims are generally heard in court before someone is exclaimed guilty. Which is what I beleieve a lot of people are having issues with. Thus, one of the points of this case (though I havn't read into it too much), to find if there is a way around needing a court case for these types of activities. Or am I wrong? Comments (3)
You are wrong.
Firstly these aren't criminal offenses -so get rid of any stupid phrases relating to "judge, jury and executioner - it makes anyone using such phrases just look stupid and dishonest. Secondy the AFACT infringement notices were correct in fact and if an ISP had any doubt could have been verified by the ISP. Thirdly, copyright theft via P2P is endemic and perpetrated by millions of people in Australia - do you really think Australia's court system could deal with that level of prosecution. iinet's stupidity, should you wan't a meaningful simile, is that of your neighbourknocking on your front door an saying his house is being burgled and you responding that it's not your problem although you provided the nice masked men with some tools they said they needed to fix their car. You aren't obliged to help your neighbour but you are a complete ***hole if you don't. Comments (7)
I never used the phrase "judge, jury, executioner", as I also find that phrase rather dense.
“Thirdly, copyright theft via P2P is endemic and perpetrated by millions of people in Australia - do you really think Australia's court system could deal with that level of prosecution.” I was going to put something about the amount of people using P2P and the courts not being able to process them, but I thought it was implied. Comments (3)
The issue is simple.
Millions of titles are down loaded illegally each year. A court system can't be used to deal with this incredibly widespread level of theft. Malone grandstanded using plain downright lies and infantile antics. inet was sued and will lose based on Malone's stupidity. What directions are subsequently made will be based on EVERY ISP taking more sensible attitudes and there is NO doubt that people who infringe copyright will be cut off from the internet by EVERY ISP. Comments (7)
The obvious is to do exactly as you have stated, John; Pass the information onto the end user, in which case the user can decide what to do, seeing as it is their responsibility.
iiNet should finish this as soon as possible as a definite outcome either way is bad for everyone. If they win, it will look like a legitimization of file sharing, even though it is nothing of the sort. If they lose, it means that an ISP can be held responsible for the actions of its users. It is easy to imagine this kind of "duty of care" being extended into other areas other than copyright. The case is far too murky, involved and is certainly not understood in its entirety either by AFACT, iiNet or anyone else for that matter. It should be dumped before someone makes a bad, uninformed decision. Comment (1)
Seems all seems clear to me.
iiNet can afford a long legal stoush with AFACT and Exetel can't. iiNet may still win. I hope so. I have a question for you. Will Exetel change it's current AFACT mandated procedures if iiNet win the court case? Comment (1)
Exetel obeys all laws in Australia and operates its business ethically and responsibly.
Comments (7)
FWIW - I agree with you regarding passing on the infringement notices, in the same way a road toll company can pass on an infringement notice about an unpaid toll. HOWEVER I do not agree that an ISP can terminate your service based on a legally unproven allegation (regardless of the evidence) - the toll road can't cancel your licence. Only the RTA can do that, based on the evidence received (the photo = the IP/AFACT info), but you still have the right to dispute it in a court of law PRIOR to cancellation.
Private companies should NEVER replace the justice system - regardless of the evidence or the alleged crime. Comment (1)
You also are wrong.
1) As I've said, any ISP that retains it's router logs for more than a day can prove conclusively that the service they are providing was used on the specified dates/times to download a copyright protected file. 2) The fact that no customer of Exetl's has ever denied downloading copyright material and subsequently proved to be correct. 3) The Australian courts couldn't cope with a million copyright claims if that was the suggested recourse (for once there wouldn't be enough lawyers or court time). 4) Any claims to the contrary of 1 - 3 above are tantamount to advocating stealing other people's property. Comments (7)
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