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
it of being the primary copyright infringer in a Federal Court case to
be heard in Sydney.
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
investigate every infringement allegation, disadvantaging it against
other ISPs."
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
allegation against customers who use peer-to-peer software would put it
at commercial disadvantage. Apparently not as it takes a $4,000 server approximately a twentieth of a second to scan an infringement notice and determine and carry out a resolution action which means that the 'cost' of passing on an infringement notice and storing all the information required in any future event is around $0.0001 per alleged infringement and it couldn't possibly involve:
"The ISP said it will also argue that wading through every infringement
allegation against customers who use peer-to-peer software would put it
at commercial disadvantage."
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,
employee or customer of the account holder" or even a stranger passing
an account holder's unsecured wireless network."
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.
But, apart from all the other pure nonsense, the piece of total sh** that demonstrates just how ridiculously stupid the iinet 'defence' advisors must be and how craven the iinet people involved are is this absolute gem:
"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.