Saturday, October 3. 2009Oh Dear...Technology And Law Suits........John Linton ....they simply don't go together. I had a really good laugh earlier this morning when I read this: http://www.itnews.com.au/News/157336,revealed-iinets-film-copyright-defence.aspx which just goes to show how impossible it is for communications technology to be explained to lawyers and then what a gross stupidity it becomes for lawyers to try and explain their own poor understanding to judges which results in the fiasco at the end of weeks/months of meaningless explanations of someone (the judge) basing a long statement of 'judgment' based on three levels of progressively wilder incomprehension. The gigantic egos and self intellectual belief of everyone involved certainly doesn't help but as the law suits between Telstra, Optus et alia and the ACCC have so clearly demonstrated over the years - the only thing you can believe is that SCs and judges are absolutely unable to grasp the simplest actual realities of the communications services currently supplied in Australia. Now, I know that the article I have cited is simply a poorly selected precis of a much longer document but you can get a pretty fair idea of the overall thrust of the defence in cluding the ludicrous 'offence' of attacking the process used to obtain the evidence as the film companies being "the primary infringer": Perth ISP iiNet will throw the spotlight on the film industry, accusing Goodness knows how either gullible or stupid the SC advising iinet must be if he/she truly thinks that red herring will 'float' but undoubtedly it will take a lot of time and the lawyers on both sides will earn a great deal of money discussing the merits of the processes used by AFACT to gather incontrovertible evidence of copyright infringement. To even suggest the point is worthy of consideration demonstrates two things blindingly clearly - that the lawyers working for iinet have no idea of what they are doing and how tissue thin the defence that iinet have cobbled together actually is. As you read further you realise that iinet's whole defence, as it was always going to be, is based on the same tissue thin nonsense where it isn't based on outright lies. Take this claim: "iiNet argued it would need "substantial" and costly IT systems to Heavens to Betsy Paw - haven't iinet ever heard of computers and scripting"The ISP said it will also argue that wading through every infringement "The ISP said it will also argue that wading through every infringement As you read each silly 'defence' it just gets worse and worse and you really begin to wonder if an SC was involved in constructing this defence at all as each successive statement is more ridiculously stupid than the previous one. I particularly liked this gross idiocy: "The ISP said that the user could be "be the partner, child, flat-mate, Apparently iinet are claiming that their own contract signed by the applicant which includes specific references to illegal use of the service is somehow not binding on the applicant? How patently ridiculous is this claim which is equally patently spurious? How such a piece of nonsense could be included yet again demonstrates how desperate iinet is and how equally desperate their advisers are - "m'lud it was a passing pirate that stole my client's service to do the dastardly deed" - it beggars the imagination.
"If iiNet were to implement a regime of this type, it would lose customers to other ISPs such as Telstra and Optus" Did someone with any sense at all decide to make this claim? "M'lud, my client is innocent of theft because other companies allow their customers to steal" So - probably the article's 'distillation' of the full defence in to a few sentences didn't do it justice but I have to say that if the quoted excerpts actually do represent the key defence 'planks' then iinet are truly stuffed. That opinion is based on what appears to be iinet's actual defence which is based on one lie and one unconscionable belief: 1) ...its to expensive to on forward infringement notices - the simple fact is that copyright infringement notices can be sent or a tiny fraction of a cent with no involvement by a 'human being' at any stage of the process. 2) ...we would lose money if we took any steps to prevent our customers from breaching copyright - I guess that sums up iinet's ethics but it seems to be as much use as a defence as the gang rapist convicted in a Sydney court three years ago whose defence was "She was begging for it and I wasn't first".....my memory fails me but I think he got 28 years jail. My own, limited, experience in technology and the law is that 'anything can happen' as none of the protagonists really understands even the basics well enough for a judge to understand on what points of law he should rule. If I was a betting man - I would put my money on iinet losing comprehensively on every count. Trackbacks
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Some possible outcomes:
- iiNet win. They argue that the file name itself doesn't necessarily constitute an infringement, and neither does 5% of a binary file. - iiNet win. AFACT fail to prove beyond a reasonable doubt that iiNet could trust their allegations and act upon them. - iiNet win. The legal processes already in place to prosecute copyright allegations is where AFACT should have taken them. - AFACT win. AFACT successfully demonstrate that whilst iiNet never actually promoted it, they failed to take reasonable steps after being made aware. iiNet fined $3 - 5 million (or so). The post office now check CD / DVDs for copyright material so it doesn't become a AFACT target. - iiNet win. They successfully argue they have no legal ability to verify AFACT's allegations - which is true, since P2P can contain legitimate traffic (how ever rare that may be). My monies on iiNet winning, only because as you've stated, courts just never fully grasp the technology. There's holes in AFACT's methodology, they seem to rely on names only (I shall save this in a text file named "Horton.Hears.A.Copyright.Infringement"), and they may not necessarily be checking the 'uploaded' data to see if it's actually copyright content - or if the claimed infringer is actually uploading 'enough' data to be considered a full copy of the copyrighted content (there are 'quotation' type laws for text, I believe it's 10%). Then, there's the possibility that the file was modified in some way from the original works, and therefore copyright may not entirely pass to Fox Studios, a large grey area.. Comments (2)
Firstly you have mis-stated the facts of the law suit in almost every statement you make - never mind, ignorance and self delusion are the first requirement of a thief.
I sy that as only a thief would attempt to write as you have just done. Like every other thief of copyright property you make up extraordinary justifications for your theft. The fact remains you are a thief and iinet, in this test case, is your willing accomplice. You don't own the f***ing property yet you take it - ipso facto you are a thief. Look in the mirror - you see a thief. Delude yourself in any way you wish - after all your craziness the facts remains - you are a thief. If you are misguided enough to bring children in to the world you will undoubtedly multiply the problem by introducing them to your larcenous views on other people's properties. iinet could have complied with AFACTs requests at zero cost and with zero inconvenience to any innocent person....they chose to say they preferred their own commercial benefits over ethics. Pitiful. Nice thing to consider. Comments (8)
"iinet could have complied with AFACTs requests at zero cost and with zero inconvenience to any innocent person....they chose to say they preferred their own commercial benefits over ethics."
Of course they could have - they didn't, and that's where this has stemmed from. Would AFACT still have taken iiNet through this process if they had passed the notices on, but did not disconnect after say 3 notices? I doubt it. Comments (2)
Your latest supposition, just as your previous suppositions, are not premised on facts which you continue to choose to ignore.
iinet has behaved unethically, based on its own reported statement, of preferring its own commercial advantage to honesty. It appears they have pre-convicted themselves via their own words - just as they 'put their hand up' to be sued in the first place via their own grand standing. A truly silly as well as uethical company.....an opinion only based on their own reported statements. Comments (8)
I actually agree with iiNet's stance here - what ever happened to "innocent until proven guilty"?
iiNet are not a law enforcement agency, and aren't in a position to prove a copyright agency's claims one way or the other - that's the job of the police. IMHO, iiNet did the right thing here - it was suggested to them that a user may have commited an offence, and they forwarded that information to a law enforcement agency for investigation. Like most large ISP's, I expect the law enforcement agencies have an interception capability in iiNet's network. It wouldn't take long for an interested agency to confirm wrongdoing by the customer - it's hardly iiNet's fault that the law enforcement agencies are frying bigger fish and don't have staff to look at this stuff. Passing the notices on to the end user doesn't achieve much, and in reference to JM's comment, how would the agency sourcing these notices even know if iiNet did or didn't do that? Seeing that a user has received 3 notices and terminating their account is a bit of a cop out - it's the ISP covering their own arse for fear of being embroiled in their own court case. Nevermind that the customer has never been PROVEN guilty of what's alleged. Don't get me wrong, I can see why an ISP might take that approach, I just don't support it. This is a bit like having my drivers license cancelled because someone made 3 calls to the local council (who own some of the roads) alleging I was speeding. Comments (2)
You appear to be as stupid, uninformed and as larcenous as JM.
Before using your school boy analogies so inappositely perhaps you should acquaint yourself with the facts. Another thief attempting to make themselves feel better - I hope you don't/never have children. Comments (8)
I'd love to see you cover the pirate party. There is little doubt that taking something that you do not own is stealing. This whole idea that it's a distribution and the owners eventually benefit is crap.
In recent times i have prioritized my dollars and changed my software habits to make it possible to be somewhat decent when it comes to software on the computer. I won't jump to the "i'm a poor student and a member of socialist alliance blah blah blah" defenses. I just feel my view on theft has changed over the last few years. I could understand why John has little affection for this behavior. I feel iinet will probably not have to pay damages. However, they will be ordered to put in place a system to deal with these infringements. John you have an automated system. Let’s pretend i sold the software I write. I found one of your users downloading that software. I then sent a notice would it be ignored because i'm not big enough? That leads me to my next question. If your company takes piracy seriously and doesn't want to help their customer’s pirate my works, what stops me from sending a bunch of lies and your user getting knocked offline? Would it be reasonable to request that these companies sending notices to users do more than just get the IP? http://www.afterdawn.com/news/archive/14371.cfm Many people feel it's not their responsibility to control their (and possibly their children’s) desire to download copyrighted content. We live in society were the government is expected (and steps in) to do more and more and parents and other figures in ones life are doing less and less to educate. Would it not be reasonable to say that the government will likely operate this internet filter on porn as a trial for ways to restrict piracy? (this would be every un ALP like though to give money to the evil corporations) As a way to further encourage the lazy people of Australia to accept failure. It’s unfortunate that the increase of consumption of music has been filled with piracy leaving those who feel like spending a dollar to pay the same price they paid the year before. I still buy CD’s because internet downloads are such a rip off. I’m forever subscribed to publisher’s youtube channels for a free listen. I hope you take the time to reply to this nonsense. Thanks, Louis Comment (1)
"John you have an automated system.
1)Let’s pretend i sold the software I write. I found one of your users downloading that software. I then sent a notice would it be ignored because i'm not big enough? 2) That leads me to my next question. If your company takes piracy seriously and doesn't want to help their customer’s pirate my works, what stops me from sending a bunch of lies and your user getting knocked offline? 3) Would it be reasonable to request that these companies sending notices to users do more than just get the IP?" The answers to your questions as things currently stand are: 1) If you (anyone for that matter) sent a notice of copyright breach in the agreed international formula it would be acted on provided that the sender ID contained the encrypted code identifying the sender as a registered party to the procedure. This prevents your 'mythical' silly teenager from interfering with the processes of business. 2) See 1) above. Also you, as a software developer would surely write your code in ways that defeat the simple copying of the program without you getting paid. If you don't then you should. 3) AFACT, and other companies send all the required key details to identify that the IP in question has committed the offence alleged. In ISP land all we need to identify the user of ANY IP address we issue is the actual IP. Comments (8)
JM is entirely right.
Someone that sees the court case for what it is. You don't have to be a thief to see the facts and the outcome. Comment (1)
Unfortunately JM got EVERYTHING about the case wrong and his statements simply reflect his total ignorance of any aspect of the case.
Like all miscreants he attempts to justify his own misdemeanors as being OK - they aren't - all thieves are blights on society. It simply undermines any society when someone decides they will steal. Comments (8)
JL - "Like all miscreants he attempts to justify his own misdemeanors as being OK - they aren't - all thieves are blights on society."
I can't speak for JM, but I agree that thieves are blights on society - no argument there. The argument is how you pursue them. This is a legal problem, and it should be dealt with by law enforcement. Law enforcement should be using their legal intercept capability (that all network providers are required to have) to prove claims against end-users, and to prosecute them in the normal way. In doing so, due process has been followed. Comments (2)
Next time you see a young girl being raped, just look the other way and repeat the mantra - "that sort of thing is dealt with by the legal systems".
Hopefully the victim will never be your daughter or sister. Don't worry about your own thieving - you probably won't get caught...you will still see a thief every time you look in the mirror. The courts will decide iinet's fate. Comments (8)
Can Net Enforcer pick up Rapidshare/Usenet downloads?
Comments (2)
(Transparent) HTTP Proxies "can".
http://steve.blogs.exetel.com.au/index.php?/archives/215-An-end-to-P2P-cahcing.html Comment (1)
JL. Infringing copyright is not considered theft in the largest common law legal system.
Precedent in US for your consideration: "The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud." —Dowling v. United States, 473 U.S. 207, pp. 217–218 Key point: Theft wholly deprives the owner the use of the stolen property. Infringement causes economic loss but does not wholly deprive the owner the use of, or income generated with, their Intellectual property. Comment (1)
Doubtless that is a comfort to the people who deliberately choose to take goods that don't belong to them knowing full well that what they are doing is theft.
I don't know why people try and explain away their disgusting disregard for other people's property in so many different mealy mouthed terms. They are simply thieves with a thief's ethics and morals and they are a blight on any society in which they live. To think they then may have children makes any sensible person fearful for the future of all societies on the planet. Comments (8)
I don't think he likes JL or Exetel, the same goes for his pro piracy compadres
http://forums.whirlpool.net.au/forum-replies.cfm?t=1284580&p=19#r375 Comments (2)
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