John Linton
..........of the copyright infringement mess.
I see from the 'decision' by AFACTS's legal team to appeal the recent 'judgement' (wow - now there's a surprise) as reported here (and many other places):
http://www.itnews.com.au/News/168136,revealed-copyright-101-challenge-to-iinet-victory.aspx
that Cowdroy's (single judge not being stupid enough to make law) judgement will be appealed on the, always going to happen, basis that he refused to 'make law' in his capacity as a single judge in an inappropriate law. His judgment was, in fact, a simple explanation that current legislation and previous case law gave no basis for determining the issues brought to the court by AFACT. Duh.....only a dummy would have expected any other result.....including, I assume, AFACT and their inept legal team that made a dog's breakfast of achieving that result - only thanks to Cowdroy (and the inevitability of the scenario).
So now, hopefully using a much higher calibre SC (who fully understands the principal issues involved and is also a 'favourite' advocate in the higher courts) the real issues of law will be addressed and multiple judges will determine whether or not the current legislation, and previous case law, adequately covers the issues or whether they need, in their determinations, to 'make law' by deciding what down loading another person's copyright material actually obliges the various parties involved to do. Clearly there is an unsatisfactory situation, assuming you have a skerrick of morality within your being, when an ISP and its customer can use the service to obtain property that should be paid for without paying the owner of that property for it. Leave out the 14 year old's crapulous statements about 'rip off prices' etc - such childish nonsense doesn't get anywhere near discussions of law.
The only issue, which properly belongs within the purview of a higher court, is whether an increasingly common practice perpetrated by, perhaps, millions of Australians denies certain 'property owners' of their property illegally. There is no need for anyone who does not have an understanding of Australian law below the level of an appellate judge to make any further comment- your views (my views) lack the competence to be listened to. I realise such a view would mean that the Australian media and every personal conversation on the subject is therefore rendered invalid but then it always should have been - having to listen to or read the puerile nonsense that has deluged the comms industry over the past few years is just plain a waste of space and intolerably boring. While only, in this 'round' of the scenario, the opinion of the appellate judges who will 'hear' the appeal matters a damn the moral issues involved remain exactly as they have always been.
There is also a legal issue involved which either the majority of ISPs themselves, or perhaps their less than adequate legal advisers have overlooked/aren't competent enough to determine relating to the actual sending of copyright infringement notices received from a realistic source to the customers whose IP is allegedly being used to defraud the copyright owner. As the copyright owner only has the owner of the IP to contact regarding the alleged copyright infringement what responsibility does the owner of that IP have to deal with the allegation? Also, in the event that the owner of that IP does not pass on the copyright infringement notice to the temporary user of that IP what implication does that have - legally and morally....but certainly legally.....and what legal and financial exposure results from not sending the allegation of copyright infringement to the temporary user of the IP address involved?
Fortunately I'm not an SC specialising in copyright protections but the SC who provides copyright law advice to Exetel has raised those points in suggesting that it's in Exetel's best legal interests to continue to forward any allegation to the user of the IP referenced in the allegation. I wouldn't like to expose Exetel to some counter law suit from some person subsequently taken to court by a copyright owner because they are able to say that Exetel never advised them that one of their children was doing something illegal....particularly when the cost of doing so is miniscule...despite what any perjurer might say.
PS: Further signs that Krudd's stupid, lying adventurism is damaging Australia's communications infrastructure:
http://www.smh.com.au/business/telstra-doubts-prompt-fear-of-credit-downgrade-20100225-p5zd.html