John Linton
.....which was that there is no current statute law that requires an ISP to assist in reducing copyright theft....whether he could have been expected to have actually contributed to case law was clearly, and in hindsight sensibly, not ever going to happen:
http://www.itwire.com/telecommunications-news/policy-and-regulation/36530-all-eyes-on-conroy-iinet-ruling-begs-questions
While it can now be seen why Cowdroy acted as he did (by skimming the judgment not by reading it carefully) it hasn't really addressed the issue beyond the extremely narrow confines he chose to use in framing the judgment (there is no current law that obliges ANYONE to take part in the reduction of copyright theft......which is the Australian equivalent of not requiring a person who rents guns to exercise any duty of care as to who the guns are rented to - lawful but not really the point in western societies. So at this point in time, as can be seen in the cited article, some ISPs believe this court ruling means that they don't need to concern themselves with the use of the guns they hire - only that the guns they hire are paid for and returned on time.
iinet will get a proportion of the money they have spent on legal costs back and they can now, at least temporarily, give much more of their attention to addressing the day to day issues of running their business. As the Federal Court decision is that of a single judge effectively ignoring the actual 'thrust' of the plaintiff's action (and really signaling that by taking so little time to review the evidence presented) AFACT's advisors have any amount of leeway to ask for the case to be taken to a three judge panel in the Appeal Court and only time will tell if that is to be the case. In the mean time - what should an ethically run ISP do?
Has one judge's view changed anything at all? In essence it has only changed one thing because in his judgment he states that the internet is used to massively infringe copyright:
"It [BitTorrent]has been used, or more accurately, the constituent parts of the protocol (such as the client, tracker and .torrent files) have been used by those accessing the internet through iiNet’s facilities (the ‘iiNet users’) to download the applicants’ films and television shows in a manner which infringes copyright. I shall refer to the constituent parts of the BitTorrent protocol together as the BitTorrent system."
- one man [Cowdroy] simply stated that, on the evidence presented (and AFACT's legal team appears to have done less than a stellar job in making their case), the current law did not require any internet provider to exercise any duty of care as to how its internet services were used. (something Stupid Stephen has claimed to be addressing in his filter trials).
I was asked yesterday whether or not Exetel would continue to pass on infringement notices to end users. That is a difficult question to give an unequivocal and immediate answer to as we would need to take legal advice on it and then we would have to consider what the ethical situation is - and to a lesser extent what the actual commercial situation is. So there are three considerations.
1) My non-legal opinion is that we need to get properly qualified expert legal opinion (on which we can rely just as we did when we received the first AFACT notices) as to what Cowdroy's ruling actually means - does it mean as the less than legally qualified technology media seem to claim that it removes all duties of care from ISPs in providing internet services or does it just point out what is already known - that there is no current law that specifically addresses the issue? Only an expert can provide that advice.
2) Ethically, I don't think anything has changed. I think that if someone alleges that an Exetel customer is infringing copyright then Exetel has an ethical obligation to pass on that allegation so that the person concerned can deny the allegation or take future actions in the knowledge that an allegation of illegal activity has been made. I believe, like Justice Cowdroy, that the internet is MASSIVELY used to infringe copyright and that parents of children who may be infringing copyright should be advised of the actions of their children if only to warn them that there may be unpleasant repercussions.
3) Commercially nothing has changed. Exetel is still a small company that can't afford the $A2 million or so the AFACT court case has cost iinet of which, at best, they will get back 70%. Our legal advice, before the current court case, was to forward the notices, get a denial and therefore be in a position to say that we complied with the copyright holder's request but could do nothing further as the alleged offender had denied the allegation and that under current Australian law we were not obliged to take the matter any further. While it is true that AFACT have stopped sending us copyright infringement notices that is not true of the other infringement notice senders and there is no guarantee that one or more of those organisations will not go down the AFACT path using Cowdroys acknowledgment (based on iinet's testimony) that an ISP is aware that their services are being used for illegal purposes.
Despite what iinet claimed on the witness stand under oath, (I wonder if that constitutes perjury?) it is a trivial exercise (with minute costs) to forward copyright infringement notices and temporarily block access until the allegation is denied. So it comes back to, firstly a legal opinion on how Exetel can continue to avoid iinet's legal costs and massive disruptions. There is no operational or cost issue involved.
PS: Or keep infringing copyright but make sure you have a spare million or two:
http://www.smh.com.au/digital-life/games/nintendo-pirate-to-pay-15m-20100209-np4i.html