John Linton
.....as ostriches always do.
This was inevitable and the timing was equally inevitable:
http://www.itwire.com/content/view/21814/1085/
In June of this year an organisation called AFACT began sending extremely aggressive 'letters of demand' to a number of ISPs requiring them to cease aiding and abetting copyright breaches. It was clear from the letters that AFACT was following a strategy designed by its legal advisers to take one or more smaller ISPs to court to test the provisions of the current newer clauses in the copyright act. It was equally obvious that they would continue to issue 'detailed' lists of copyright breaches weekly until they had established clear non-compliance/non-co-operation that would 'trigger' a clear reason for going to a court on the basis of the ISP's 'intransigence' in refusing to deal with the situation 'commercially'.
Since we set up Exetel in January 2004 we have always been conscious that, because of the gigantic amounts of money involved, copyright holders would have to take some sort of legal action against ISPs. Our view was validated a few months later with the successful suing of People Telecom and the very large costs involved in that action. As a very small and financially very vulnerable company a law suit against Exetel would have almost certainly sent us out of business then and even today it would require a large amount of additional funding from our personal resources with no certainty of success.
Exetel has, from its very early days always forwarded allegations of copyright infringement to the end users as identified by the IP address in the infringement notices. When AFACT begin to send us infringement files (in a cumbersome and difficult to deal with format quite different to the agreed international 'standards') we nevertheless wrote the code/scripts necessary to automate the process of forwarding those notices and instituting the 'block pages' that required acknowledgment by the customer that they had deleted any infringing material/the allegation was in error before they could restore access to their service.
Our view then, and remains our view now, was that AFACT had engaged a law firm to 'design' a strategy that would 'manufacture'the evidence required to exactly support a law suit based on establishing the ISP as the guilty party in copyright breaches. There is NO doubt that the SC(s) constructing this stategy for AFACT knew exactly what evidence would be required to mount the action they planned and therefore (as a recipient of that first letter) you would have to have been a complete fool not to very quickly work out what would happen if you took the approach that iinet not only took but then whined and grandstanded about in the media. Some of iinet's public statements were breathtakingly stupid and absolutely incredible from a technology company.
When we got the first letter from AFACT we sent them a strongly worded reply advising them that we were quite certain that we were taking every action required by even the widest interpretation of the current law(s) to ensure that we played no part in 'aiding and abetting' copyright infringement and then passed all future correspondence to our lawyers. We met with our lawyers who suggested our most prudent action would be to seek advice from a qualified expert on copyright law and our processes of dealing with copyright infringement notices.
Our objective in taking a qualified SC's advice was to ensure that, should AFACT have 'selected' Exetel as the suitable 'recipient' of their law suit we would have been protected from any 'damages' claims by having sought and then acted on qualified advice as to whether the allegations being made by AFACT were, in 'fact', sustainable claims under the law(s) as it/they stood then.
Unlike iinet, based on their public statements, Exetels handling of any copyright holders (including AFACT's) 'allegations' are compliant with not only the law(s) as it/they currently stand but go some considerable way to meeting the realistic assessments of where case law interpretation may in fact expand those current requirements to.
Not wishing to sound as arrogant (and as it may turn out, quite as wrong) as Michael Malone, Exetel's decision to put in place painless forwarding of copyright infringement notices plus the ability of the person alleged to have infringed copyright to deal with the allegation within a few seconds completely complying with the current legislation allows Exetel to comply both with the 'letter of the law' and with the 'spirit' of the current law in that our actions may well reduce unintentional and/or 'unauthorised' use of the Exetel internet service to in fact breach copyright
It should have been clear right from AFACT's issuing of their first letters of demand (this was an Australian based organisation acting for Australian based companies citing Australian law) that this scenario was going to be different from the US agents previous attempts. A court action such as the one now being taken against iinet was inevitable and it was going to be costly. What also should have been clear to anyone with half a brain was that the 'head in the sand' attitude adopted by iinet, among others, just courted the exact result that has now transpired.
It appeared to us that both Telstra and Optus would avoid being the 'chosen sacrificial lamb' due to their track record and long experience of using the Australian legal system to their continual advantage and their immense legal budgets are already in place and fully funded rendering legal action against them highly likely to be both enormously more expensive and highly protracted.
It was therefore going to be inevitable that, in this scenario AFACT, was going to choose a much smaller company (and we believed Exetel was just big enough and totally financially vulnerable to be such a target) that would do everything possible, by the limitations of its financial resources, to keep the costs of defending such an action to the minimum - which would therefore keep the time frame to the minimum and thus allow the process of coercing ISPs in to aiding the copyright holders in reducing the use of the internet as a source/tool of copyright breach.
There was never any chance therefore that Telstra or even Optus would be the target. The cost efficient way of getting a wider/deeper interpretation of the current sections of the copyright act subject to court judgment is to take the action that AFACT have now commenced. Should they be successful in getting a judge to rule "against" an ISP and then subsequently get that judgment upheld on appeal - perhaps as far as the High Court, then they will have achieved very significant progress in reducing the use of the internet to breach copyright.
iinet have selected themselves as the defendant in this test case by not only ignoring the requirement to deal with AFACT (in whatever sensible commercial manner they may have chosen to do so) but their MD/CEO has run to the press alternating between grandstanding and whining and making his company a very obvious 'target'. Perhaps he is relying on the IIA to part fund his company's defence?
You don't have to have much of a 'legal mind' to work this out.....it appears Michael Malone doesn't have much of a 'legal mind' and was the cat's paw used by the IIA.