John Linton
.........maybe I'm going to have to learn how to do that.......
Following the recent receipt of copyright infringement notices from an organisation called AFACT I had replied directly to AFACT and copied our lawyers on my reply to which they responded, in part, as set out:
"Dear John,
Mark has provided me with a copy of AFACT's letter and briefed me on the background to this matter. It might be helpful if we could have a telephone conference with you and Steve to discuss how you would like to approach the matter from here. My initial thoughts are that you might want us to write to AFACT requiring them to provide full technical details supporting the allegations of copyright infringement made in their letter - for example, requiring them to specify exactly how and what they did (at a detailed technical level) to come up with the list of alleged infringements. We assume that AFACT downloaded the relevant video files using a bittorrent client and then kept a log of all the peers that supplied parts of the files, but it would be useful to have AFACT confirm this in writing. Certainly (as you have made clear in your own email to AFACT), all you have at the moment is a bare, unsubstantiated allegation of infringement.
As you are probably aware, there is a 'defence' in section 112E of the Copyright Act that protects ISPs from being held liable for infringements 'merely because another person uses the facilities so provided [by the ISP] to do something the right to do which is included in the copyright'. This is a still relatively new section, having been introduced by amendments to the Copyright Act in 2000, and the courts are still working out the full scope of that defence. The courts have essentially said that a copyright owner has to show something more than the mere fact that an ISP's facilities were used - they need to show that the ISP 'sanctioned, countenanced or approved' the use of their facilities for that purpose. Attached is a copy of the most recent Federal Court decision on the effect of section 112E if you are interested. We would be happy to provide you with a detailed advice on this issue if you would like.
There are also likely to be additional considerations flowing from the Telecommunications Act and the Privacy Act that would restrict an ISP's ability to monitor directly the activities of its customers. For example, it may be that it would unlawful for you to intercept and monitor directly the data being sent by your customers. If this is correct, then there is probably little more that Exetel could do to prevent customers from infringing copyright than what you have already done - namely, prohibiting such conduct in your terms and conditions of use. However, we have not fully considered this issue and would need to carefully review the relevant legislation if you wanted formal legal advice on this on which you could rely.
Finally, it also occurs to us that if Exetel received such a letter from AFACT then it is highly likely that other ISPs received similar letters. If Exetel is a member of an industry association (for example the Australian Internet Industry Association (IIA)), you may want to raise (or us to raise) this issue as something that members might want to obtain joint legal advice on and take a joint position on. In our experience in the Kazaa case (Universal Music v Sharman Networks) in 2004, the copyright owners will fight hard and make it a long and very expensive court battle if they decide to try to make their point. It might help dissuade them from taking this course if they are up against an industry body of member organisations adversely affected by the position the copyright owners are taking, rather than just various individual ISPs with more limited resources.I have little doubt that he was right in suggesting that Exetel was not alone in having such letters of 'demand' sent and that other ISPs would also have received similar 'demands. I was less than enthusiastic about "working with other ISPs/ISP associations in determining a 'common ground' in dealing with these issues" although I understand that the costs of dealing with a "test case" law suit directed solely at Exetel would be well over $A500,000 and quite possibly a great deal more - not a pleasant thought but then it's an equally unpleasant thought to do anything but obey the laws of the country in which we operate as those laws are interpreted by our courts - not by anyone else.
Maybe I'll just have to learn a new skill and have Exetel join an "Industry Association"......it's never too late....even for the oldest of dogs.
So we had a conversation and it was really good to talk to a lawyer who knew the details of P2P and the differences between the various methods of obtaining files from the internet and who had also had first hand experience in a major copyright lawsuit. I feel better about going on holidays and leaving the dealings on this issue in competent 'legal hands'. So we agreed they would write to AFACT requiring them to provide complete technical and engineering details, including the actual methods and copies of the code used to identify material and verify the material actually was subject to copyright, before issuing further notices.
His view of our current processes and practices of dealing with infringement notices was that they meet every requirement of current Australian laws and probably are far more comprehensive than those employed by the ISPs of which he has first hand knowledge.
This issue will undoubtedly'play out' over the next period of time with AFACT clearly attempting to move from the previous positions of other such organisations of attempting to address the end user to their new position of postulating that the ISP is guilty of "collusion" in not closing down ALL P2P traffic on the basis that it "is clearly ilicit".
This is a pretty far stretch of the current laws (or any conceivable interpretation of them) but there is little doubt that AFACT is positioning their correspondece campaign to go that way.
As an ethical human being I have sympathy for anyone objecting to their property being stolen. As someone involved in running a business I have limited time and money to become the scapegoat of some campaign to establish precedent in Australian laws.