Friday, February 5. 2010Cowdroy's Ruling Really Only Gives One Indication......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: 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
Trackbacks
Trackback specific URI for this entry
No Trackbacks
Comments
Display comments as
(Linear | Threaded)
I recall asking a road engineer how he set speed limits on rural roads. He said that he measured existing driving speeds on that road and set the limit so that 80% of existing users were within the limit.
I also recall when it was illegal to tape a TV show on a VCR but eventually the law was adapted to legitimise common practice. Currently it is legal to use a tuner card to record a copyrighted show on to a hard drive but not legal to use a torrent to put that same show on the same hard drive. Perhaps we could get my road engineer to sort it out. Comments (3)
1) I don't think a rural engineer has any ability to set precedent law in the theft of another person's property - I'm surprised that any Australian State leaves road speed limits to a single person whose factual input would be less than comprehensive and such a rationale completely non-sensical.
2) I think you'll find the 'right to reproduce' terms are included on the packaging. 3) You pay for the connection and a right is granted to you to time shift via a mechanism included in the 'product package' However it really doesn't matter - thieves will steal until they suffer the consequences of their theft. If enough people in your location decided armed robbery was an easier way of meeting their financial needs would you argue that common practice requires the law to be changed? Clearly such a view is complete nonsense. Comments (8)
I don't suppose it is of any value to point out that copyright infringement legally is not "theft".
Comments (3)
the current approach seems the most sensible, if a notice of copyright breach arrives block the user and allow them to confirm or deny the allegation before restoring their service, the onus is then on the account holder
there's nothing to say this decision won't be appealed and overturned or any other interested party won't do similar in the future, music, games, software industries are all in a similar situation in regard to intellectual property theft, continuing to do what you already do would seem to be the sensible thing to do Comments (3)
Taking someone else's property without paying for it is theft.
A person who does that is a thief. Because they know they are thieves they pretend they are a "copyright infringer" as I suppose that makes them feel better. Does it change what has happened? No. It is theft and no amount of pointless argument changes the fact that money is stolen. Comments (8)
We have asked for a competent SC's advice.
My reading of Cowdroy's judgment is that he has really made life very difficult by his categorical statements that iinet's customers were committing copyright infringement....but that under the current law the ISP was not responsible. It just begs a future plaintiff to use that judgment as a starting point for an ISP de facto knowing they were aiding and abetting as it is in black and white in Cowdroy's statements. You don't need much imagination to assess as to where those statements lead. Comments (8)
John, John John,
perhaps you should discuss with your legal team before making such an idiotic claim. The law of theft requires that your taking of someone else's property deprives them of that property. However downloading a COPY does not deprive the owner of revenue from the original. Using the Victoria definition (not applicable here, but then again the Federal statute has no definition of theft as it is a state crime) (s72 of the Crimes act) defines stealing as: "(1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. " Copyright infringement does NOt deprive the owner of the property Comment (1)
Oh dear - my mistake - I know what the 'legal' definition is - it makes no difference.
Depriving someone of income is theft. Console yourself how you like if you download movies or songs or TV shows you act like a thief, you benefit like a thief and, irrespective of your mealy mouthed casuistry, whoops - you are a thief. Look in the mirror - if you are downloading other people property without paying for it you will see the image of a thief. Do you like what you see? Comments (8)
I think it is dangerous to block someones internet access based on allegations. This could have serious affects on that persons ability to do there job or any number of other functions that may be important.
I have no problems with an ISP passing on the notices, but some person(s) having allegations of copyright infringement does not constitute the right to withhold important paid for services. Comments (2)
"Depriving someone of income is theft."
It is a mistake to assume that someone who infringes on a copyright would have actually contributed to that income had they not infringed. Question: Of the millions of illegitimate Adobe Photoshop users, how many of them would actually purchase the software if it were not easly accessible for free. Answer: Not many at all, if any. Comment (1)
1. Under the Copyright Act 1968 (Cth) reproduction (copying) all or a substantial part of a work without the consent of the copyright owner is an infringement, which is a civil wrong - i.e to enforce their rights the copyright owner has to initiate an action in the Federal Magistrates Court or Federal Court. It is also an infringement to 'authorise' someone else to copy all or a substantial part of a work without the copyright owner's consent - also a civil matter and this was the subject of the iiNet case. Justice Cowdroy states that the safe harbour requirements were satisfied by iiNet, although in this case iiNet did not need to rely on them.
2. Where a person flagrantly engages in copyright infringement on a commercial scale the Copyright Act makes such conduct in certain circumstances a criminal offence - it is the Copyright Act itself that makes such conduct a criminal offence, which can be prosecuted by the Federal Police. 3. Justice Cowdroy does not leave open an allegation of 'aiding and abetting'. That was the whole point of the case, known to us IP lawyers as an 'authorisation' case. As long as an ISP does the things specified in the Copyright Act, it can take advantage of the so called 'safe harbour' provisions, which were specifically included in the Copyright Act (by the US Free Trade Act) to protect ISPs from 'aiding and abetting' (ie authorisation) claims. 4. Justice Cowdroy's reasons are comprehensive and in my view, legally correct. Cheers!! Comment (1)
Perhaps Exetel can help reduce downloading of "copyright material" by reducing the incredible amount of available data particularly in off peak hours.
I realise that reducing available download data limits isn't going to stop someone downloading an episode of "Lost" at 350 MB, but it will help reduce tha volume of copyrighted material some download. This may be against Exetels business plan, as the attractiveness of the HUGE data available helps with sales. But if Exetel really wants to help reduce "copyright infringement", then this is the simplest and most effective way. Comment (1)
Copyright infringement is not theft. The only people claiming it are the ones trying to stir moral panic over the issue and invoke strong feeling from the people invloved.
In fact Justice Cowdroy quite succintly pointed the same thing out: As an aside, the Court notes that AFACT, the organisation which the applicants use to aid in enforcement of their copyright, itself blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright Theft. (from http://robertcorr.com/2010/02/afact-v-iinet/) Most people's moral compass is pointing in the right direction. It does not need realignment from a dysfunctional industry unable to cope with change. In ten years time (I hope) we will not have these problems. Comment (1)
The amount of downloads per dollar paid are dictated by the marketplace/suppliers.
Comments (8)
Agreed. Copyright holders should be pursuing legal action - it is not the role of the ISP to act on mere allegations, causing disruption to their customers services and potentially impacting income.
Pass the notices along to the customers of an ISP, sure. Should a copyright holder be noticing a lot of infringement occuring from a particular range of IP addresses that belong to a certain ISP, take legal action to obtain the details of individuals and go after them. Innocent until proven guilty. Suspending a customers service until they deny the allegations is still making a presumption of guilt in my opinion. Comment (1)
People who download copyright material are not necessarily depriving anyone of income.
Copyright holders like to pretend that every illegal download is a lost sale, but that is not the case at all. If someone downloads a movie it is often because they don't think it is worth the price it is being sold for. If they couldn't get it for free they wouldn't pay for it. Copyright holders lose nothing in this situation. In fact, they probably benefit... because if it turns out the movie is good people will be more likely to buy a copy of the DVD or watch it on TV... both of which generate revenue. Consumers aren't demanding a lot. All they want is to be able to get their content online and on-demand at a reasonable price and without too many restrictions... but copyright holders don't like it because it destroys their traditional business model of ripping people off by tightly controlling distribution channels. When copyright holders finally give in and start treating their customers with a little respect and people are still pirating their stuff I will have sympathy for them. Until then I don't care... they only have themselves to blame. Comment (1)
There is so little doubt that an infringement notice is accurate it isn't worth quibbling over.
Comments (8)
This suggestion doesn't make sense. You can't "punish" the ligitimate users of the Internet because some people are doing the wrong thing.
You cannot and must not place arbitarily far reaching restrictions on the Internet to solve some problem being experience by a minority group. Any solution to copyright infringement needs to be targetted at the infringers and not restrict legitimate operations on the Internet. You solution woudl actually negatively impact coipyright holders as it would kill IPTV which is one of the saving graces copyright holders have to effectively use the Internet. Comments (2)
[427]: Had the respondent taken action against its subscribers based on an AFACT Notice and it was subsequently found that the allegation was unfounded, the respondent would have committed a breach of its contract with the subscriber and been made potentially liable for damages without any indemnity from the applicants or AFACT.
Comment (1)
from http://www.abc.net.au/pm/content/2009/s2708929.htm "Mr Cobden [iiNet's counsel] also rebutted assertions that iiNet's profits increase if customers download lots of films and TV shows illegally. "
Is that true? While I assume that an ISPs most profitable customers are those who don't use their full quota, surely iiNet's profits would fall if customers stopped downloading and downgraded their plans accordingly? Comment (1)
In theory the more a customer downloads the higher the revenue is but it would be hard to see that an ISP would make more money.
Comments (8)
iiNet claimed basically that the Telco Act prevented them from passing on the notices. Justice Cowdroy found that this was not the case.
But, and nonetheless, Cowdroy J found iiNet neither authorised infringement by its conduct and, if it were relevent, would be entitled to safe harbour by virtue of Mr Malone's unwritten (but occassionally discussed) policy of what to do with repeat offenders. Note though that iiNet considered that repeat offenders meant proven (or admitted) offences, and that proof could only come from a court of law. Again Cowdroy J accepted this and considered it reasonable and appropriate even. Comment (1)
Perhaps you can point out one if you are actually alluding to something specific rather than making a pointless non-observation?
Comments (8)
I think you'll find that if you just pass on an allegation and request a reply a whole lot of people won't or don't reply and just hope it will go away, blocking their access forces a response, it's a simple redirect and hardly inconvenient as the person can reinstate their own service just by responding, without that block being in place though how many will respond?
Comments (3)
It seems plenty of people have addressed this already but it's important that this false analogy between copyright infringement and theft be debunked. If I pirate a song of which you are the legal copyright owner, there is no impact whatsoever on on you. You could argue that I will not now pay for the song which I might have otherwise paid for, but copyright law does not protect, nor was it designed to protect "potential" income. At-least not since the RIAA started wielding it like a club.
A painter doesn't own the image he produces, only the right to sell it. I can view the picture with my eyes, photograph it, sketch it in a book and show my friends, all for free without impacting on the artist in any way, and without being sued for copyright infringement. The only reason why this isn't accepted for music is because unlike the visual arts, there are companies that make enormous quantities of money for distributing musical art. Unfortunately for them, the internet makes their role redundant so they're doing their utmost to protect it by using copyright law as a weapon. To equate the downloading of a song with theft is quite simply wrong and is just a way that record companies paint themselves as victims who need protecting when in reality they're dinosaurs who need to go extinct. Comment (1)
those that feel they are being cheated will take whatever measures they have to I guess, targeting the ISP may have been a blanket fix if they won but it won't be the end of it http://www.smh.com.au/digital-life/games/nintendo-pirate-to-pay-15m-20100209-np4i.html
Comments (3)
|
Calendar
QuicksearchArchivesCategoriesBlog AdministrationExternal PHP Application |