Austalian ISP Stands Up For Users In Court -- Claims They're Not Violating Copyright
from the this-could-get-interesting... dept
Late last year, a bunch of movie studios sued Australian ISP iiNet (which already has a reputation for standing up for its users) for not waving a magic wand and stopping any unauthorized file sharing that occurred among its customers. iiNet responded by pointing out the obvious: if the studios feel they've been wronged, they should take it up with the police, not iiNet. In fact, they said they pass such complaints directly to the police:They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.The case is moving forward now, and iiNet has kicked things off by suggesting that users sharing files on a one-to-one basis via BitTorrent don't seem to be violating Australian copyright law. Specifically, iiNet seems to be saying that using BitTorrent doesn't violate copyright because a one-to-one trade isn't distributing the content publicly (a version of the "making available" debate still going on in the US in some circles) and also pointing out that since BitTorrent breaks files up into so many small pieces, no individual user appears to be distributing enough to be considered copyright infringement.
While the argument does, in fact, make plenty of sense -- I wonder if it will actually fly in court. The entertainment industry has convinced so many people that any sort of unauthorized use of content is "piracy" that an emotional argument may prevail. In fact, the movie studios already seem to be going for the emotional argument expressing shock that iiNet can claim that its customers aren't violating copyright law.
The case will be an interesting one to follow -- though, you know if iiNet prevails, lobbyists will move quite quickly to push the Australian government to change copyright law to clarify the issue. Just watch: if it happens, there will be a rash of stories about how Australia "has to" do this to "comply with international treaties." It's how these things work.
To be honest, I'm surprised iiNet is taking such an extreme position. It seems like sticking with the "we're just the neutral service provider" response would have a higher likelihood of success.
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Filed Under: australia, copyright, filters, isps
Companies: iinet
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More than anything, the arguments such as "no individual user appears to be distributing enough to be considered copyright infringement" and "making available" is playing legal tiddly winks with the reality of the situation: Hundreds of thousands if not millions of people a day end up with unlicensed copies of material as a result of P2P / torrent sharing. In many ways, it's just a mass conspiracy, like having 1000 people each steal one grape from a fruit store, and piling them up outside. In the end, you have stolen grapes, but no one person actually stole enough to be considered a major crime. Yet, there you are with $20 worth of grapes.
Again, with BT, you offer up the whole file and in total you are likely to have spread at least the whole file once, although not any one person. But if you check each of those people, they will have a complete copy as a result of the file sharing. Did it just appear out of thin air?
iiNet appears to be trying to protect itself, nothing more.
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Yes, in a sense, it did.
More to the point, no one 'got' anything. They were just told yes or no a few hundred million times. The bits that make up the files you say they stole were theirs since they bought the computer. They ask a few thousand friends which ones to turn on and which ones to turn off, and you call that stealing. I don't get you.
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Thanks for the new point of view!
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I don't think iiNet is standing up for users as much as trying to shirk their own responsiblity for their network.
You base this on the fact that you've spoken to them about their motives?
More than anything, the arguments such as "no individual user appears to be distributing enough to be considered copyright infringement" and "making available" is playing legal tiddly winks with the reality of the situation:
Yet, asking for 750 to 150000 times the cost of the infringing work is just honest lawyering, right?
In the end, you have stolen grapes, but no one person actually stole enough to be considered a major crime. Yet, there you are with $20 worth of grapes.
Try not to confuse copyright infringment and theft, and scarce versus infinite goods.
iiNet appears to be trying to protect itself, nothing more.
They appear to be trying to only do their job, providing internet service to paying customers, and making the person complaining about a civil infraction deal with it their own damn self.
If someone trades your music on a USB stick in a Target, you don't go complain to Target or the USB stick maker, or even the cops (it's a civil matter) you go to your lawyer and sue.
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"I don't think iiNet is standing up for users as much as trying to shirk their own responsiblity(sic) for their network."
What responsibility is this? Keeping their network running fast and clean? Then they'd hunt down these BT hogs and kick them off with the aid of these fine gentlemen giving them IP addresses to the people that are using BT legally or not! Yes, BT has legal uses AND are used in such ways to distribute mass updates for software with some companies.
Or is it legal responsibility to hunt these crooks down that dare use them to assist in their crimes? Then why not, as Mike noted, say they are a neutral service provider and say they are no more responsible for the crime as a person using a street to get away with stolen goods! Or the gas station providing gas for the getaway vehicle!
Yes Harold VERY disappointed with you. I read that article and said "Ah, Harold would probably say this is a small time company looking for more customers so they are showing extreme protection of their customers and the trial to promote themselves as 'for the people' and thus get more people to sign up with their internet service. A publicity stunt and nothing more." Or something along those lines. Come now Harold... DO BETTER!
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Re: Law
> people a day end up with unlicensed copies
> of material as a result of P2P / torrent sharing.
If millions of people are doing it and don't feel it's wrong, then it shouldn't be. The law is meant to serve the people, not the other way around.
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If they can't make a living from it, they should find a new line of work.
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Yeah, that's an intelligent response. You really nailed me there.
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Please don't confuse record company or movie studio with artists. Artists exists in spite of studios, studios only exist because of artists. Studios/record companies are basically parasites from the point of view of artists.
In the past they had useful functions (distribution, promotion etc) that couldn't be had otherwise. Thats not true anymore and now they have to compete with other methods of distribution and promotion besides their own channels.
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Re: Obvious
> users as much as trying to shirk their
> own responsiblity for their network.
Your comment assumes facts not in evidence in that it presumes the responsibility exists in the first place.
That hasn't been determined yet. That's what the trial is for.
And iiNet's position seems perfectly reasonable: if the RIAA (or its analogous organizations) feel they've been wronged, the proper avenue is to go to the police about it. Not the ISP. They aren't police, they have no law enforcement authority and it's idiotic to hold them to that standard.
If I'm at home and someone calls in a death threat, I call the cops. I don't call AT&T and expect them to solve and prosecute the case for me.
> iiNet appears to be trying to protect
> itself, nothing more.
No kidding, Captain Obvious. What do you expect them to do?
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If I went up to your boss and said "Weird Harold has been getting 1000 people each day to steal a grape from my shop", your boss' response should be:
A. What's that to do with me, if you have a problem with a crime being committed perhaps you should take it up with the police?
B. Weird Harold you're fired
'iiNet appears to be protecting itself, nothing more'
True, but unlike other weak ISPs they aren't rolling over for anyone who happens to make an allegation. In Australia we are still innocent till proven guilty - you can't punish them first without fair trial, without even involving the police - thats taking the law into your own hands which is also illegal in this country. They are doing the right thing, which works for them and happily also for its customers.
Aside from that the fact that one grape would actually cost much more than a song file because the song file can be copied infinitely so a copy costs nothing, and nobody is short one copy because there is NO STEALING GOING ON.
The fact they can't work out how to make money in their line of business is their own problem, not ours in any case.
We've been through (and still going through) the same flawed thinking with the Telcos. They refuse to change their plans/pricing in the face of new technology, so you drop them and go to a different provider using the new technology and at cheaper prices than before. Finally they realise after losing customers that maybe its a good idea to start selling the new technology and services that customers wanted for ages but couldn't get until a competitor turned up with an offering. The movie studios haven't got to that stage yet - they're still at the stage where their customers are begging for services but they wont provide them, so customers vote with their feet and go and get what they want anyway. They are not criminals, they are being good consumers. There has never been a convincing argument that friends sharing songs is somehow piracy. I grew up exchanging mix tapes with friends. Piracy was reserved for operations mass producing and selling illegal copies.
If you don't want anyone to experience your artwork, then don't produce it - its that simple.
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To continue your failed, but fun, metaphor:
If I made an accusation to to 3rd party delivery driver who delivers produce to the store than you were stealing grapes from the store, what is his logical response? Deal with the proper authorities. Admittedly I am not Australian, but I would be willing to wager, let's say a full 10 Fuji apples, that reporting an allegation to the wrong person will just and only elicit a response of "I can't help you with that, but I will tell the proper authorities since you seem incapable of doing so yourself."
It isn't rocket science, it isn't even CSS; this is barely more than Notepad (or pico). Also, while I am loathe to make too much commentary on your wild inaccuracy, please understand that peer to peer and bit torrent applications have different methods of sharing, and therefore would require different legal applications for protection of IP rights (if you haven't already figured it out or Googled it, IP means intellectual property, and is used here as a generally broad term encompassing copyright and other forms of rights assignment for intangible digital media).
iiNet is under no moral or legal obligation to provide information on its customer base to an outside entity making allegations, from what I understand of Australian law. If I am wrong on that front, I'd be happy to be informed with some good reference material though.
PS - don't diss tiddly winks - that game requires more skill than making 2 bit BS remarks about grapes and stolen produce.
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Ultimate outcome
Let's say that iiNet wins. All that happens is a fleet of lobbyists rush in to change the law to illegalize an activity a huge number of Australian citizens legally enjoy.
This is the real problem. No amount of innovative success will convince modern industry that innovation is more important than legal wrangling. Legal complexity only benefits those who are trying to bend the law.
But this is the system we have because corporations have lunches with politicians, while individuals can write letters and get a canned response.
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may be some validity to this
Let's suppose that these could be valid arguments (which of course only a court case will decide). If the industry starts pushing for "copyright reform" couldn't the users push back with "copyright overhaul" asking that the whole system be rebuilt with an eye towards future proofing any laws that come out of it? Let's build a good, public and industry supported Copyright Reform Act that provides industry with opportunities to make money while protecting the consumers from that industry. Let's find a compromise that promotes the well being of most instead of lining the pockets of few.
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That is not correct.
Some information in the document is classified, and just separating that information from the rest of the document doesn't de-classify it.
And, yes, I have held a US security clearance and know a little about handling classified material.
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The only information that I would have from the outside out be a tracert to their network, an IP address on their network, and their company assigned to those IPs. If they have nothing to do with it, they need to say so and indicate who it is. Otherwise, the only assumption is that the ISP itself is sharing the files.
Remember, Australia doesn't have DMCA in the American form.
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That's for you to find and prove beyond reasonable doubt.
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I'm afraid I cannot agree with you, WH. The ISP has been asked to stop the infringers based upon an allegation and have been requested to reveal the alleged infringers. They are not required to do so. If a court should issue an order for the information, then they may need to comply, but media companies cannot force an ISP to comply without a court order. The media companies need to go to the authorities to get the information they are requesting. iiNet does not have to show that "it is in fact not them" as they are not being accused of infringing. Even still, that would be for the court to decide, not media representatives.
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Why this is actually rediculous.
Allow me to put what is happening here into real world terms for ya Harold.
DISCLAIMER: I'm going to use an analogy of actual theft to prove a point on how the argument of an ISP just "protecting itself" is a tad ridiculous. I am not, in any way, attempting to associate File sharing with actual, physical theft.
Lets say that you go to your friends house. You park your shiny red Volvo on the street. Someone comes along and steals it and you see it happen, but don't get a good look at who did it. You and your buddy have time to hop in his pinto, and follow the thieves. You do not have a Cell phone, and are therefor unable to contact the police. You follow your car to a gated community with a security officer at the gate. The car enters and you are stuck outside.
Now, here is where my analogy comes into play. If we were to mirror what the movie studios are requesting, our protagonist goes to the security guard, informs him/her that his car was stolen and just drove in. Asks the guard to explain to the person who drove in that they have stolen a vehicle and that it was a bad thing. If it happens further, they will no longer be allowed to live there. NOTE: No actual proof has been submitted here to the guard, or the owner of the complex. Simply an accusation. I don't think even Harold would want to live in the sort of world where an accusation is an automatic guilty verdict. It, as it has been pointed out, is kinda-sorta part of our legal system policy that you are innocent until proven guilty.
In real life, my scenario, that guard would be fired about 3 seconds after his boss found out what he did regardless of whether or not the car was stolen. The RIAA and their movie counterpart, would actually like nothing more than to not only have those people threatened to be kicked out, but also have their names/addresses released as soon as they drove up to the gate. All the ISP has said, is the same thing that the security guard should have said. Call the cops, not my jurisdiction.
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Re: Why this is actually rediculous.
Your story is not close to analogous in the sense that where someone lives has little bearing on the act of stealing a car. Living their did not accommodate the theft. An ISP however, provides the channels by which the copyright infringement is occurring.
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It should also be noted that international obligations under the Rome Convention, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty do require Australia (and the US) to provide copyright holders with a making available right. There is no debate about whether these obligations exist... the debate centers around whether the particular country has implemented such a regime through national legislation, and whether it should.
Australian courts have already recognized the making available right in Australia, while courts are split on the issue in the US.
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That is exactly the question, though. At issue is whether neutral ISPs have an obligation to police their customers' internet usage for copyright infringement, or, whether they must at least take action when they are notified that one of their users is engaged in alleged infringement. The position you suggest they take would not do them much good.
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Just a thought
Just a thought. Let us say I bought a song on itunes, printed it on a paper (there are many ways to do that), snail-mail that to my friend, who scans it and recovers the song. Is it illegal? If so then shouldn't every mail be opened my police or RIAA or USPS to check if there is a "song" inside it?
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Re: Just a thought
The difference in your hypothetical is that Itunes has no means of controlling or monitoring the use you detail. An ISP on the other hand, does have that ability. Herein lies the rub.
For the record, I do not agree in ISP liability for copyright infringement perpetrated by its users. I am simply letting you know why courts are prone to find for it.
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ones and zeros
makes you wonder how digital data can even get copy-righted being that it's nothing more than a large number
I think if you want to sue someone for copy right infringement on digital content, you should have to show in court the full binary file converted to base 10 and convince the judge that you own that number.
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Re: ones and zeros
How are these isp's supposed to filter for copyrighted content? Uf bit-torrent users start using encryption there is no way that anybody can see what is inside the data packet (filled with zeroes and ones of course).
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Re: ones and zeros
Your argument is an emotional one, because we cannot understand binary data, so it SEEMS like it's just nonsense, and you shouldn't be able to copyright nonsense. But it isn't nonsense; when decoded appropriately, it's meaningful content.
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Say it with me!
LEGAL STANDING IS DIFFERENT.
YOU ARE NOT DEPRIVED OF ORIGINAL ITEM WITH INFRINGEMENT.
LEGAL STANDING IS DIFFERENT.
and finally THE LEGAL STANDING IS DIFFERENT.
Getting a CLUE yet Harold? Oh right, head up the ass of the industry, so thats a 'no'....
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Re: Say it with me!
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If one is only
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Re: If one is only
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Re: Re: If one is only
Copyright is about a work as a whole and how it's component parts fit together, it doesn't matter if you get it in pieces from various locations.
However, I do agree that the whole copyright system is broken and should be chucked. But that's done by changing the laws and the system, not by trying to argue on technicalities.
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Re: Re: Re: If one is only
Frankly, I think the whole copyright system, the very concept, makes little or no sense. preserve the sense of plagiarism and credit-where-credit-is-due, but other than that... -shrugs-
*statistically speaking, someone in the history of the internet probably HAS done this, but that's not the point.
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I still think the hypo is distinguishable because in your example the USPS is not privy to the actual infringement. The infringement in your example occurred in your home, whereas in this situation the infringement (copying) is actually occurring on the ISP's network.
I do appreciate the hypothetical, though. It certainly makes me think.....
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No it's not. Not in the same way that the hypo's "infringement" is done at his printer. In that view, the infringment is done on the computer, when you take the millions of "yes" and "no" answers and flip the bits.
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Prime number and music...
Largest known prime number is about 5 MB long (i.e. 5MB space is needed to store it in binary system). A typical song is also about that long.
So is that long prime number copyrightable?
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So is that long prime number copyrightable?"
No. Only original expression is copyrightable. Length has nothing to do with it. Facts cannot be copyrighted. A number would be regarded as a fact by a reviewing court.
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Only one question
I would love to sign up.
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But hey, I don't need to say "pirating music isn't stealing" since Harold already said it for me. Thanks, Harold!
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How is an ISP responsible for the actions of individuals not under their control?
Do you think that an ISP has the authority to decide what you do in the internet? Do they want to end up in court over it?
If an ISP complied with every whim of every crackpot, they would not have any customers would they ?
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iiNet in the "land of Aus"
Oh, where is campaign finance reform when you need it?
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