Court Orders iiNet To Hand Over Sample Records Of Customers

from the privacy? dept

Wed, Jun 17th 2009 2:54am — Mike Masnick

iiNet is the Australian ISP that has been standing up for its customers' rights against the entertainment industry which is suing the ISP for not magically stopping copyright infringement. iiNet's argument, from the very beginning, has been that if the entertainment industry believes that iiNet customers are breaking the law, then they should sue those customers. It shouldn't be iiNet's responsibility to act as the industry's 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'.

iiNet has also raised questions about whether or not a user making use of BitTorrent is technically violating copyright, especially since they may only be sharing a tiny fragment of a file based on the way BitTorrent works.

Either way, a court has now ordered iiNet to hand over a small sampling of customer data requested by the anti-piracy group AFACT, which AFACT claims will show infringing activities on the part of iiNet subscribers. Of course, it would be no surprise at all that a group of folks hand picked by the industry can be shown to be infringing. The real legal question is whether or not (a) there's enough evidence to prove who was actually infringing and (b) more importantly, why this is iiNet's responsibility.

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Filed Under: australia, copyright, infringement, isps, liability
Companies: afact, iinet

31 Comments

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Anonymous Coward, 17 Jun 2009 @ 3:30am

"(a) there's enough evidence to prove who was actually infringing and (b) more importantly, why this is iiNet's responsibility. "

(a) If the ISP can stonewall and not provide customer data, there is little way to show who was infringing, and (b) as the IP addresses are assigned to iiNet, they are responsible for what is coming from their network. Basically, if they aren't able to provide customer data, legally it shouldn't be hard to assume that iiNet's own staff members are doing the infringing.

iiNet shouldn't be able to have it both ways. If you want to talk about Net Neutrality, it should be bidirectional - totally open internet, but with total responsbility. You don't get a open internet with only firewalls to stop the music and movie business.
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Anonymous Poster, 17 Jun 2009 @ 4:14am

Re:
So let's just shut down the entire Internet then. Because I can't think of a single provider who's 100% free and clear of people using their services for "illegal" downloading, and the costs associated with having the ISPs play content cops for Big Media would put most smaller ISPs out of business and seriously crimp the budgets of larger ones.

The ISP is selling their service; they can't help it if people use their service for illegal actions. Should wireless providers be responsible for people setting up crimes over cell phones? Should paper manufacturers be held responsible for people using their product to plan crimes out?
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imfaral (profile), 17 Jun 2009 @ 4:46am

Re:
Or they just don't roll over and give up information, and force the accuser to go to court and get a warrant. If a ISP was 'responsible for what is coming from their network. " then nobody would want to be an ISP the liability would be too great.
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Yeebok (profile), 17 Jun 2009 @ 4:48am

as an iiNet customer
The whole argument is bizarre - who is liable for ram raiders ? The vehicle makers, whoever built the road and/or footpath, whichever company made the clothes they were wearing ? How about the petrol station they bought the petrol from ?
To say iiNet are doing anything wrong by the way their handling it is unfair. They could advise a customer the allegation has been received I guess but legally they're not empowered to actually -act- on the allegation. Like all crimes, the police, or proper relevant authority should handle it.
If they give out the customer's information, that technique can be used in many ways to get someone's information for other purposes. Cutting off their internet access on a single allegation isn't fair either.
That said I don't believe we have the equivalent 'safe harbour' the US has, so iiNet may well wind up in a bad position - considering that AFACT claims to have set up 'honeytorrents' and then requested details of specific IP addresses.
There has to be a better way for this sort of thing to work but it seems most are insistent on not moving forwards.
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Ima Fish (profile), 17 Jun 2009 @ 5:38am

"especially since they may only be sharing a tiny fragment of a file based on the way BitTorrent works."

I've made the same argument before. Let's assume you download a 1 gig file from bittorrent. You're sharing it at the same time, but you're sharing bits to everyone in the cloud. Even if you upload the entire 1 gig of the file back to the net, one person did not get it. Hundreds of people only received pieces of your entire upload. In fact, unless you're the original seeder, I'd guess it'd be impossible for anyone one person to receive the entire file only from you.

So the question remains, is sharing an unusable portion of a copyrighted file a violation of copyright. The fact that it's unusable is important. It's not like someone is downloading 20 minutes of a movie in sequence from you. Sharing 20 full minutes from a movie might be infringement. Nope, what the person is sharing from you is essentially useless bits and pieces of data. Does anyone have a copyright on the sequences of bits you're sharing? Probably not.

But of course, in some countries merely offering for share is infringement. And of course downloading the original file could be infringement itself, too. But for some reason they're going after the sharers, not the downloaders.
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Ima Fish (profile), 17 Jun 2009 @ 5:41am

Re:
"If the ISP can stonewall and not provide customer data"

The ISP is not stonewalling. It's following the law. If the music industry wants to obtain user information from an ISP it has to do it via a subpoena issued through a court. But the music industry cannot be bothered with that. It thinks it's above the law and that everyone should bow down and do its work for it. I'm glad ISPs are following the law and are no capitulating to this BS.
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Anonymous Poster, 17 Jun 2009 @ 6:03am

Re:
"In fact, unless you're the original seeder, I'd guess it'd be impossible for [one] person to receive the entire file only from you."

It's not entirely impossible even if you're the original seeder (or just a lone seeder), but unless you're seeding to just one person, the chances of this being probable are infinitely small.
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CStrube (profile), 17 Jun 2009 @ 6:08am

Re:
If iiNet is responsible for what is coming out of their network, do the users of zombie boxes have a claim then for being allowed to be infected? And if so, then don't the rest of us also have a claim for the garbage those same boxes spew into the public tubes? Great, now the ISPs will only allow us to connect using virtual machines while wearing rubber suits in a sterile room. Great, now we've broken the internet...
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Ima Fish (profile), 17 Jun 2009 @ 6:10am

Re: Re:
I guess you're right, it'd be possible, but highly improbable.
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Eponymous Coward, AKA Doug (profile), 17 Jun 2009 @ 6:27am

Re: Re:
Let's take this even further. Should the government be liable for maintaining roads that criminals travel to commit their crimes? After all, a very small percentage of people travelling on the roads do use them as a means to expedite their illegal activity. Should postal services be held liable for their transport service being used to deliver the occasional letter bomb? Should the airlines be held liable for transporting terrorists? Should we sue charcoal, sulphur, and saltpeter for allowing their combination to be used in the commiting of violent, explosive acts?

OK, the last one was a bit silly, but you are suggesting that a means of transit is culpable in this case. That's all the internet is, a means of data transit, and ISPs are responsible for the maintenance and upkeep of their respective thruways, nothing more. If you try to make them responsible for all the traffic through their pipes, you are agreeing, in principle, to a vehicle inspection at the start and stop (even at given waypoints) of every trip you take in your vehicle, no matter the duration or purpose.

Ignore the infringement on your privacy for a moment, and consider the logistical nightmare of this scenario. Media companies want this nightmare as far as the data you transmit/receive is concerned, but they also want the ISPs to do the heavy lifting for them. It all amounts to complete and utter horseshit, and I hope that these jerks get a nasty rash from Lady Karma.
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Hulser, 17 Jun 2009 @ 6:28am

Re:
So the question remains, is sharing an unusable portion of a copyrighted file a violation of copyright. The fact that it's unusable is important.

I don't think whether it's usable by itself or not is important at all to the underlying issue. To the extent that sharing a whole file is illegal, I believe sharing a portion of a file that can be usable in this manner is illegal as well. Personally, I'm a strong believer in fair use rights, but it's plain to see that this argument is an end-run around copyright laws. In other words, to say that you're only sharing a portion of a copyrighted file that is small enough to fall under fair use rights is an abuse of those same rights. It's taking advantage of a loophole, not something that falls in line with the original intent of fair use.

Again, I believe in fair use rights, but I can only see this legal tactic as giving a bad name to fair use and a ready-made justification for big media to further curtail fair use.
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Hephaestus (profile), 17 Jun 2009 @ 6:50am

Re: Re:
Great Post .... "Should wireless providers be responsible for people setting up crimes over cell phones? Should paper manufacturers be held responsible for people using their product to plan crimes out?"

That is the real issue here. If the Recording industry went to the phone company and said this person is running a BBS with dial up modems shut off his phone service they would be laughed at and told to get a court order.

If the Recording industry went to the phone company and said we want you to monitor what what people are sending over the phone lines of these phone numbers. The same laughing would occur.

What we have here is a privacy issue. They need a court order to listen in on your phone line. Why dont they need a court order to listen to you internet connection.
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Anonymous Coward, 17 Jun 2009 @ 7:43am

Where did they get the list of IP's that were involved in these crimes? They had to set up servers, share the files, and watch for who connected. Intrapment???
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Anonymous Coward, 17 Jun 2009 @ 7:49am

Re:
It doesn't matter.

Let's say you have 100 friends. Each of you goes into a book store (with a camera) and takes a picture of a "double" page of a 200 page book. Each of your friends mails you their image, and you assemble it as a book and print it out.

Who violated copyright? Answer: ALL OF YOU!

Infringement is any part. 1 second of music, 1 second of a movie, it doesn't matter. A packet of bits that is part of the movie is still part of the file. Your intention in sending it out is to help someone else end up with a full copy, and their intent in collecting pieces is to end up with a full copy.

You are making what is essentially a nonsensical argument that might only work in front of a judge that doesn't understand that "series of tubes".
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Anonymous Coward, 17 Jun 2009 @ 7:52am

Re: Re: Re:
"If the Recording industry went to the phone company and said this person is running a BBS with dial up modems shut off his phone service they would be laughed at and told to get a court order."

You aren't thinking. The phone number would come up, and the phone company would say "this customer has this phone number installed HERE". Then a court order would be issued and the place inspected.

Think of an IP address as a temporary phone number, nothing more. The ISP isn't turning anyone off - they can just provide the correct customer information and things can continue exactly as you say, with a court order (or with a lawsuit filed).

The ISPs aren't going to be judge and jury - but they also cannot be stone walls that allow thieves and criminals hide behind them.
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Anonymous Poster, 17 Jun 2009 @ 8:48am

Re: Re: Re: Re:
But, in the same vein, would you want your local phone company being the equivalent of the phone police just because a few people use their service to plan/commit crimes?

No?

Then why should the ISPs be forced to play copyright cops for Big Content?
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Luci, 17 Jun 2009 @ 8:58am

Re:
My phone was used to hire a contract killer (theoretically). Since that number is assigned to my phone company, they are responsible for this illegal activity. That is exactly what you just said. There is no logical reason a company should be held responsible for the activities of its customers.
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Regular Coward, 17 Jun 2009 @ 9:02am

Re: Re: Re: Re:
What you are asking for is private information on the basis of an allegation. You can't prove that anything illegal happened. You can't get a court order to inspect someone's home on something so weak as 'they were running p2p software'. What were they using it for? Can you tell us? No? Then guess what, it doesn't go. Why? Because if it does, it can be challenged in court.
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Anonymous Coward, 17 Jun 2009 @ 9:44am

Re: Re:
Wow, talk about missing it.

The phone company isn't responsible for your actions. However, they do provide your service, and are completely capable of aiding law enforcement to track down where your phone is installed. Let's say the "contract killer" you hired was in fact a police man, and he got your phone number off the called ID. Why would the phone company NOT want to help?

You are talkign like the phone company is going to be listening to your line to see what you are doing. This is far from the truth. Quit lying.
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Sean T Henry (profile), 17 Jun 2009 @ 10:12am

Re: Re: Re: Re:
"You aren't thinking. The phone number would come up, and the phone company would say "this customer has this phone number installed HERE""

You are not thinking. A phone number can be looked up easily for free with out having to contact the provider. If the phone number is not available (unlisted) and the phone company releases information about that customer they should be expecting a letter from a lawyer for breach of privacy and contract.

IPs are unlisted and should be considered private.
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Sean T Henry (profile), 17 Jun 2009 @ 10:19am

Re: Re: Re:
"You hired was in fact a police man, and he got your phone number off the called ID. Why would the phone company NOT want to help?"

They would not want to help because it is not needed the police know who the perp. is and have evidence proving it from the call and the meeting that would be arranged to get payment.
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Sean T Henry (profile), 17 Jun 2009 @ 10:26am

Re:
I think that is what they did but what they do not take into consideration is the IP address they received may not have been the "owner" but some one routing through them using a program like Tor.
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Anonymous Coward, 17 Jun 2009 @ 11:08am

Re: Re: Re: Re:
It wouldn't hurt - they would know who they are dealing with, they could perhaps protect the potential victim, etc. It's all part of proof.

In the case of the internet, all of the crime happens online, making the IP address (and other identifying information unique to a single user) as important.

Again, why would the ISP NOT want to help? Should the ISP be in the business of shielding users? At some point, they become part of the problem, and that could have legal implications for them in the long run.
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Anonymous Coward, 17 Jun 2009 @ 11:10am

Re:
It isn't infringement for the owners of the files to share them (or receive them). If I owned the rights to a song, I would just fire up my torrent software, search for the file, and start downloading, tracking each of the IP addresses that provided me the content (along with things like their ping times, their torrent software version, and the like). That SHOULD be enough information by itself to generate a valid request to the ISP for information on the end user.

That some people feel this isn't enough only means that to me, these people have something to hide (like terabytes of downloaded stuff).
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Bor, 17 Jun 2009 @ 2:08pm

Re: Re: Re:
"Wow, talk about missing it. The phone company isn't responsible for your actions. However, they do provide your service, and are completely capable of aiding law enforcement to track down where your phone is installed."
Wow, talk about missing it. The recording industry -isn't- law enforcement. In fact the ISP forwards complaints to real, actual, with a badge, law enforcement.
"Why would the phone company NOT want to help?"
Why would they violate their customer's privacy because some third party claimed they'd done something wrong? But yeah, shame on the ISP for standing up for due process and all that rot.
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Anonymous Coward, 17 Jun 2009 @ 3:14pm

Re: Re: Re: Re:
Bor, simple: If they aren't able to show that it is a client, they are conceivably on the hook themselves. It wouldn't be a big jump for the RIAA to say "Well, it's your IP block, so it is probably someone in your offices... prove otherwise".

"Wow, talk about missing it. The recording industry -isn't- law enforcement. In fact the ISP forwards complaints to real, actual, with a badge, law enforcement."

Because "law enforcement" doesn't want to deal with infringement as a theft issue, the rights holders are obliged to do what they do. They can use the court system to that end, and they can ask for information. The ISP can choose not to give it, and end up in court over it. They have plenty of options.

Anyway, if you are using your ISP in violation of the T&C, why should they cover your ass and take the heat for your being a file sharing "infringer"?
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Bor, 17 Jun 2009 @ 4:45pm

Re: Re: Re: Re: Re:
Bor, simple: If they aren't able to show that it is a client, they are conceivably on the hook themselves. It wouldn't be a big jump for the RIAA to say "Well, it's your IP block, so it is probably someone in your offices... prove otherwise"

Nonsense. The burden of proof is on the complainant. They can't just randomly pick people out of hat and demand they prove their innocence.

Because "law enforcement" doesn't want to deal with infringement as a theft issue, the rights holders are obliged to do what they do. They can use the court system to that end, and they can ask for information. The ISP can choose not to give it, and end up in court over it. They have plenty of options.

They can go right ahead and sue alleged infringers then. The ISP isn't refusing to hand over information with a proper subpoena. But the rights holders aren't bothering to sue people themselves. They are suing the ISP to take unspecified steps to solve their problems for them, like for example cutting off customers based on their unproven allegations.
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Another Coward, 17 Jun 2009 @ 4:47pm

Re: Re: Re: Re: Re:
Because "law enforcement" doesn't want to deal with infringement as a theft issue? Wonder why? Could it be because "infringement" is NOT theft, as is the case by definition of law and has been argued over and over? You're expecting authority to follow the law but when the definitions don't spell things the way you want them to this is what you come up with. Now who's the one trying to have it both ways here?
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BigSis,, 17 Jun 2009 @ 6:28pm

Re: Re: Re:
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BigSis,, 17 Jun 2009 @ 6:46pm

Re: Re: Re:
Most interNet groups if joined has a rules and conditions page to read/acknowledge etc. So If that person goes outside these then those people are responsible/iable and the site/page owners and operators are to charge them etc.
example. I recently wrote a reply re health and vitamins and named a company that I KNEW had helped some people thru difficult situations. I wasn't selling it etc, but I was taken off die to "solicitation" of that product.
I also knew a person who had a child sex porn forwarded to him by other supposed "friend". THe one who received it was charged due to his ISP rules etc. But the "GUILTY" one got away because the "BIGGER" WW ISP didn't even get a check up call. I don't even ike mentioning these things, but truth is truth. Some of the unsolicited emails received are becoming disgusting, insulting and I do NOT like receiving them....But they are sent in the name of "FUN" rest assured if I receive any illegal, and knowingly wrong things I will advise those who need to know. I do not download illegally, DVDs Music etc
Buy them from proper retailers. I think it all adds up to , new and younger internet users have been told "ANYTHING is AVAILABLE on the INTERNET".
Also roads, shops, municipalities etc have cameras to check criminal activity...so....why not internet
Obey the rules, be free from Guilt, get a REAL LIFE, not a virtual one. annd BE HAPPY......
iinet is not responsible for what you do, but you are (no reference to Doug, only those guilty ones)

LVS (BIG SIS)
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Raybone, 17 Jun 2009 @ 7:10pm

AC's ignorance is staggering
#14 "Infringement is any part. 1 second of music, 1 second of a movie"
uh..Wrong. Ever hear of Fair Use?

#26 "Because "law enforcement" doesn't want to deal with infringement as a theft issue"

Yeah because it's not theft

"the rights holders are obliged to do what they do"

No one is "obliged" to do anything, though as you pointed out, "They have plenty of options." Many rights holders actually chose healthy options (ones you refuse to acknowledge) such as embracing the tech and fans of the future and eliminating what are essentially, in my humble opinion, anti-artist, anti-fan and anti-democratic criminal organizations that were homogenizing and oppressing modern culture and art into propaganda for multi-national corporate interests
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