Friday, November 21. 2008The Ostriches Have Failed In Their Objective.....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. Trackbacks
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Hi John,
I think this could turn out rather well for Exetel. With AFACT taking IINET to court over the whole matter, some precedent will (one hopes) be set. This could go one of two ways, I think: 1. IINET are deemed responsible. Other ISPs will then need to change their policies to something else. I would assume that 'something else' will be somewhat akin to Exetel's current policy. Exetel may be one of the only ISPs not needing to change. 2. IINET are not deemed responsible, and AFACT (and any other aggressive copyright enforcement agencies) will need to follow normal avenues, including satisfying the burden of proof, in order to get individual copyright infringers' details from ISPs through legal means, rather than their current bullying tactics. In this case, other ISPs will continue doing what they currently do, and Exetel will be free to do the same. Regardless of the outcome, I think Exetel's policies have been sensible. In case 1, Exetel will be shown to have had considerable foresight -- far more than many other ISPs. In case 2, other ISP supporters will continue their current rants about Exetel's policies, but you'll be no worse off than you are now. Well done! Comments (2)
That's the way we see it.
Lucky, for us, there was an arrogant, grandstanding loudmouth when we most needed one. Comments (10)
I would expect that Optus and Telstra would have a serious interest into ensuring a case against iiNet does not set a precedent that would allow AFACT to come after them.
As such I would not be surprised to see the Optus and Telstra legal council supporting iiNet on this. Comments (2)
Yeah right!
Afact won't go near Optus/Telstra, they can't afford to. Comment (1)
All AFACT want's is a judgment on what they see as ambiguities in the wording of the act which can only be done by an amendment to the act or by case law.
Once a judgment on a clause in the act is mde, and then upheld on appeal it no longer becomes a case of "going after" any company - it is something that all companies must comply with. Telstra don't care one way or the other. The ISPS that would be most affected by an 'adverse' judgment are iinet, Internode and TPG. Comments (10)
"ignoring the requirement to deal with AFACT"
What requirement is that? I don't see how AFACT have any more legal authority than, say, McDonalds sending something to an ISP. Why are AFACT so reluctant to go through correct legal channels to persue "illegal downloaders" - i.e. the police Comment (1)
Whilst I agree that copyright thefe is wrong and should be enforced, I have never believed that the ISP should be the enforcer. Australia Post don't block your mail when they get a letter from AFACT when you receive a bootleg DVD in the mail, QANTAS or CityRail don't stop you from travelling with DVDs or CDs you bought at a street market. Only the police can enforce these cases. Why should ISPs be any different?
Comment (1)
Perhaps you should learn to understand what you read before you make a total goose of yourself by offering irrefutable proof of your stupidity in writing?
Do you understand what the term "aiding and abetting" means? If you do, you will realise why your silly comment was the product of a stupid mind. (Don't take this personally: I'm replying to your inanity as a 'token' response to the dozens of other similar stupidities from iinet ip addresses I have simply deleted). Don't you have any work to do there? Run away and play with the other under 5s in the internet sheltered workshop. Comments (10)
Sigh.......
......because AFACT are alleging that the ISP IS CONSPIRING TO AID AND ABET COPYRIGHT INFRINGEMENT.......... They have no interest in pursuing individual theft - they are interpreting the current AUSTRALIAN legislation to make the ISP the direct object/instrument in the infringement. Don't argue with me - I personally don't care - a court will now clarify the act and when that is done any ambiguity will be removed - one way or another. Last time I looked - it's a requirement to obey the law. Of course all the people who breach copyright citing their whining excuses don't now have to face up to a $A1 million plus legal bill. I'm really, really glad that number includes Exetel.(we never did break the law) Comments (10)
So the result of this action by AFACT cannot result in Exetel being required to assist in preventing copyright infringement any more than it does already, but could result in other ISP's being required to change/implement systems along the lines of what Exetel already does (which is verified as obeying all laws)? Is that correct?
John, if new laws were suggested/passed requiring ISP's to be more proactive in defined ways in preventing copyright infringement, would you support such changes? The reason I ask is that I know you are against any type of theft, but also that you are in business to provide the cheapest possible services and might not want to see additional costs spread among all customers. Comment (1)
The simple facts are these:
1) AFACT's legal advisers believe they can make a Federal Court judge rule that an ISP aids and abets the violation of copyright if they are advised that an event of copyright breach has occurred based on a given set of facts. 2) If their laywyers are successful in that endeavour then all ISPs will have to find ways of obeying this new part of the law on copyright. 3) There is no "choice" or "opinion" involved it has become the law. 4) Exetel obeys all laws that relate to its business. 5) We believe that if obeying the law incurs a cost then that is simply a cost of doing business. 6) We are highly efficient and obeying any law relating to 'managing' defined traffic would be trivial in the total cost of providing a service. We always thought that over time the protection from internet theft would become a major issue and have done all we can to ensure it will not inconvenience our law abiding customers if that situation should ever come to pass. We are law biding people. Comments (10)
Maybe I am missing something here but;
If the courts decide that iiNet is liable for the actions of it's customes and that they must pay damages, wouldn't this be a serious concern to all ISPs? Comments (2)
Perhaps you should get the particulars of the statement of claim and then you would understand what may be involved?
...and no....this action against iinet isn't going to affect any ISP for 'past actions'....it's only going to affect iinet in this instance (as per the statement of claim). Future actions - that will be the case if the federal judge/appeal judges make determinations that qualify/clarify/determine current ambiguous sections of the law - or who knows - the high court may indulge itself and make law rather than just interpreting it? Google "Michael Williams Gilbert and Tobin" and take a guess at how far below today's already steeply fallen iinet share price an iinet share will be worth over the coming months? Comments (10)
Further, peterh_oz, if Australia Post DID get a letter from AFACT and ignored it, and AFACT then took them to court, saying that they were aiding and abetting copyright infringement by ignoring the letter (which is what they are basically saying re: IINET, although in that case it is most likely thousands of letters, and not just one), then that would be a situation similar to what we have now.
Only the courts can decide on the aiding and abetting claim at the moment; not AFACT, not IINET, not the police, and not Australia Post. Once that's happened, as John says, then the law will (should) be decided. And then if it is decided in AFACT's favour, then, indeed, Australia Post could be considered as aiding and abetting copyright infringement if they received a letter from AFACT and ignored it.... Comments (2)
A simply cannot understand how anyone can hold ISP's responsible. ISP's are no more responsible for piracy on their networks than Connex would be if I was to take a train to a robbery.
This whole thing is utter nonsense and I can only hope that my faith in Australia's legal system isn't as misguided as my faith in our political system (No Clean Feed Reference). I posted about this the other day and I find the whole thing obsurd http://anotherworthlessblog.net/2008/11/20/film-companies-sue-iinet/ Comment (1)
I have no knowledge of how these things are handled but I would guess AFACT would chase the ISP rather than the individual more for the fact that they are an easier target with a greater chance of a ruling in AFACTs favor and a return on their investment than if they chased an individual, wasn't AFACTs last big success slapping some kid on the wrist for recording the Simpsons movie on his mobile http://arstechnica.com/news.ars/post/20070817-aussies-get-lesson-from-pirated-simpsons-movie.html no doubt all the huffing and puffing from AFACT will cost iinet a lot more than it cost their last target
Comment (1)
I understand why your company put in all its new procedures to comply with AFACT. You cannot afford to do otherwise and have to look after your own interests first.
But on the other hand, what about your customers? How many have you asked to find another ISP, at considerable cost and inconvenience in some cases since you cannot churn from ADSL2, based on a simple accusation by a third party with deep pockets and an axe to grind? Or are you saying that "acknowledgement by the customer" on the automated page is enough to settle the matter even if three or more accusations have been made? Comment (1)
1) If we are not in business we can't provide any service.
2) We can' arbitrate betwen you and an 'accuser' 3) You, as a customer, are as much within your rights to deny you have breached copyright as an 'accuser' has to allege you ave. 4) If you say you haven't and an other party says you have then we can't determine who is right or wrong and as I understand it a court process currently exists to resolve that issue without any need for Exetel to make any judgement. 5) What you do about accusations of copyright infringement is entirely up to you. We just need to know that you have denied the allegation - and as you are not a dishonest person we would have no reason to disbelieve you - would we? Comments (10)
4) If you say you haven't and an other party says you have then we can't determine who is right or wrong and as I understand it a court process currently exists to resolve that issue without any need for Exetel to make any judgement.
Isn't it your current policy to judge the accuser right if all they do is accuse three (3) times? Comments (3)
"Isn't it your current policy to judge the accuser right if all they do is accuse three (3) times?"
No. Read the relevant page. I really wish people would stop inventing Exetel's policies and processes. Comments (10)
4.3) If Exetel reasonably suspects that a Customer is infringing a third party's copyright or if three (3) or more copyright infringement notices have been received in relation to a Customer's account and the Customer fails to provide a valid defence for such notice in writing to the issuer of the notice that is satisfactory to Exetel, Exetel may request the Customer to arrange for an equivalent service to the Service supplied by another carrier or carriage service provider within fourteen (14) days failing which the Service will be cancelled in accordance with the Agreement.
Given that in a court setting, the burden is on the accuser must prove that the accused is guilty beyond reasonable doubt, would Exetel find it satisfactory if the accused made a written notice to the accuser that said "I didn't do it," given the accuser didn't prove anything in the first place? Comments (3)
1) Exetel receives an allegation with no proff.
2) Exetel fowards the allegaton to the allegeged perpetratr 3) the perpetrator can deny the allegation No way Exetel can 'adjudicate. 4) If the aleged perpetrator doesn't deny the allegation, three times, then Exetel, on the balance of probability would accept that the allegations are probably correct. 5) Exetel would then exercise its 'rights' under the agreed terms of the mutually entered into contract. But this is my blog and I really have no interest in giving detailed procedural answers to questions. Comments (10)
Just read this:
http://apcmag.com/why_iinet_will_probably_lose_the_piracy_lawsuit.htm Seems like AFACT has phone books worth of evidence [citation needed]. O.o Comments (3)
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