John Linton It's always good to start the day with a good laugh and Michael Malone can usually be relied on to provide one whenever he decides to grandstand to the media from his alternate reality. His latest piece of nonsense (admittedly cooked up for him by lawyers who seem to be even more off beam than usual when trying to comprehend communications technology) that was so risible is contained in this:
http://www.zdnet.com.au/news/communications/soa/iiNet-invokes-Telco-Act-in-AFACT-defence-/0,130061791,339298037,00.htm
The particular statement that amused me enough to actually cause me to laugh out loud was:
"To examine customer communications on the basis of a third party's allegations would be a criminal act for us to engage in.
Personally, and with only four months to go, I think this is a major contender for the annual "Sanctimonious Git Of The Year Award".
This is such a childishly stupid mis-direction of the actual complaint about iiNet's (who enthusiastically volunteered to be the 'stalking horse' for Telstra) behaviour that it beggars the imagination as to how someone who has completed the first year of their law degree, let alone a super expensive 'team' of high prices solicitors and a couple of specialist SCs could come up with it. It has nothing to do with ANYTHING that is being complained about and (not being remotely legally qualified) can only be being suggested as a last resort to defending the indefensible:
1) No data carrier is permitted to 'read' the traffic it carries
2) Therefore no data carrier can decide whether an allegation of copyright breach can be verified by the carrier
3) Therefore a carrier is required to do nothing when a breach of copyright is alleged
Pretty simple - the carrier is by this argument completely exonerated from any responsibility for anything carried over its network. Game to iinet/Telstra - new balls please.
Not quite....in fact not at all.
The problem with that 'defence' (as any specialist SC would well know) turns on one irrefutable fact. That fact is that the OWNER of the IP to which copyright information was downloaded is in fact, in this case, iinet (or in all cases some other ISP). So the OWNER of the IP address is, as claimed by AFACT, the entity perpetrating the copyright breach of which they have provided CLEAR EVIDENCE (title, date and time downloaded, location downloaded from, location downloaded to) and they have presented this evidence to the OWNER of the IP and have proved that the data travelled to devices OWNED by owner of the IP address.
As I am not privy, obviously, to how AFACT's SC will run his case I am obviously just stating the sort of scenario that even a simple person with a little knowledge would view the situation which is that without the carrier concerned having to examine one byte of data they have no defence to the exact data that AFACT have provided them with.
So it's a "point of law" as to whether iinet (in this case) is in fact the downloader of the copyright infringing material or not - at least that appears to be the nonsense Michael Malone is happy to say he believes and therefore why he feels iinet is 'innocent'. An interesting definition of one person's ethics if also an illustration of other aspects of one person's knowledge and overall character.
This 'argument' has ben run in both the Republic of Ireland and the UK and some other EU countries - and has failed the test of those countries legal systems in that, to greater or lesser degrees, the position is that the OWNER of the IP has the responsibility for what traffic is downloaded to and from that IP and have 'voluntarily' agreed to co-operate with government approved copyright holders to take various actions against people using those IPs for breaching copyright. In the Republic of Ireland that 'co-operation' includes removing access to an IP demonstrated to be involved in copyright breaches (the practical effect of that results in cancelling the end user's service....or does it?)
Exetel was sufficiently concerned (as a very small company with no money to fight the sort of law suit iinet volunteered to involve themselves in - between $A500,000 and over $A1 million plus - so we took expensive legal advice to understand the scenario I have briefly described in this musing. We then dealt with the AFACT allegations and communications as advised by the SC briefed by our solicitors and feel safe in following his advice that we are protected completely from both legal action against Exetel and also protecting our customers from any 'false' allegations of copyright breach without it costing us one cent and without it causing us to breach the telecommunications act or disadvantaging any of our customers.
Michael Malone's hubris and desire to grandstand to the media is so totally pointless that it is impossible to understand what could have motivated him to enter into a legal fight that is basically unwinnable on legal grounds and even in the event of finding some legal way of 'winning' brings in to question all sorts of negative views of the ethics and business practices of a commercial entity. No wonder Telstra is very happy to assist iinet in its legal defence costs - what a great way of using a cat's paw.
It could all have been made to 'go away' without one cent in costs or without disturbing any customer concerned about being falsely accused of breaching copyright (or, if you wish to be cynical, anyone who knowingly breaches copyright):
1) Forward the copyright breach notice to the end user without comment giving them 2 choices and blocking their service until they make one of the choices
A) First choice - acknowledge receipt of the breach notice and deny/remedy the contents and immediately get the service unblocked. (whether the user actually did breach coyright is irrelevant - they can still selet this option).
B) Second choice - Don't acknowledge receipt of the breach notice and the service remains blocked for 21 days and is then cancelled.
2) No cost to anyone, AFACT's demands met 100%, apart from a few seconds blocked - customer not inconvenienced in any way - Exetel not liable to any legal action.
Simple, 'elegant' and effective. You have to wonder why iinet didn't do this no cost and simple thing rather than risking a lot of money, reputation damage and a lot of wasted management time....maybe he just likes fighting as he has nothing else to do with the time or large amounts of shareholder money involved?