iiNet Says Complying With Anti-Piracy Complaints Would Violate Telecom Laws
from the privacy-anyone? dept
We've been following the lawsuit down in Australia, where AFACT, the local entertainment industry "anti-piracy" group, has sued ISP iiNet, complaining that the ISP refused to do anything when it would send over infringement notices. From the beginning, iiNet's response has been clear: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'.AFACT continues to insist that iiNet should be responsible for becoming copyright cops themselves, and had won an early battle, forcing iiNet to hand over "sample" records of users. However, Big Al points us to the latest news, where iiNet is claiming that not complying with AFACT's usual demands (it is handing over the sample data after working out the details) isn't just an issue of iiNet not wanting to be AFACT's enforcer, but that it violates Australia's telecom act, and could be a serious breach of privacy laws:
"Under the Act, it is illegal for iiNet to use customers' personal information in the manner demanded by AFACT without a court order or warrant. Breaches of the privacy provisions of the Act can attract a two-year gaol sentence."Separately, iiNet noted:
"To examine customer communications on the basis of a third party's allegations would be a criminal act for us to engage in."It should come as no surprise that AFACT isn't buying this, calling it a "very novel" argument and one it hadn't seen before, and claiming that IP address information is not the sort of information that's meant to be included under the telco act, since it's not really "confidential." This case just gets more and more fun to watch (though, if I had to guess, iiNet's arguments probably won't prevail).
"Our starting position on this would be there is good public policy reasons for why Australia Post should not be opening your letters. And good reasons for why carriers should not be listening to your phone calls or looking at what you download. Our view is that would constitute a criminal offence."
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Filed Under: australia, copyright, infringement, isps, liability
Companies: afact, iinet
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Oh please
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iinet actually followed the law according to the Telecommunications Act by forwarding every complaint on to the authorities who are meant to investigate allegations (and supplied them with user information when requested).
The act also protects Customers from being booted by iinet without cause (which is basically non payment, or illegal actions as verified by the courts). So when the AFACT came asking for the customer details (sorry handing them over is illegal) and for the customer to be booted (cant do that either) iinet sent all the information to the police and said please investigate and tell us what we need to do.
So basically... if the AFACT win they have changed the Telecommunications Act.
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If copyright is a civil matter, "turning it over to police" is as meaningless as calling them cops when you don't get all of your chicken nuggets at Mickey Ds.
If they want to play stupid, then the music industry should just sue them directly as the IP holder, and they can figure it out with their client after.
They are being way too cute, and legally, cute usually gets you Tenenbaum'ed.
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AFACT are correct in the fact that those laws may not include the users IP address, but they already had that, didn't they? Our privacy act (or parts of the telecommunications act) covers the users "confidential" data, such as name, address, etc.
Cheers,
athe.
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Breaching the telecom act by violating a customers privacy is a criminal matter.
Demanding that a company commit a crime to deal with a civil infringement...how "cute".
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The same thing applies here. Otherwise I can go on IRC and find anyone's IP address and if I don't like that person because I disagree with him/her I can ask that persons ISP for their address and just make up some fake reason. Again, it won't work because there is a legal process they have to go through. The RIAA is no exception.
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It is on par with the "anonymous" bloggers. If the blog host doesn't want to take the heat, they need to learn how to point fingers appropriately.
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They're a BUSINESS. This isn't a murder or national security
We're talking about an industry wanting to violate the rights of citizens so they can make money.
If it costs too much to go after people, then you'd think SOMEONE would have the brains to realize that their business strategy is crap.
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Honestly, if iiNet won't point to a user, they should get sued solidly themselves, iiNet and (california version) Does 1-99. Then iiNet can spend their money trying to dig themselves out of the hole they created.
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Look in a mirror and say that
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http://www.techdirt.com/articles/20090811/0152565837.shtml
The RIAA actually has so much control over the FCC they actually expect the FCC to investigate this garbage.
Yes, the laws are entirely one sided. They favor rich and powerful corporation at public expense. That's why copyrights and patents last way way too long and they keep getting extended. The laws are one sided, but not on the side of the people, they're on the side of the record labels and special interest groups. and despite that the RIAA et al want to continue taking away our freedoms and our rights and stripping away justice just to serve their purpose. It's nonsense. Please, don't give me your, "the laws are one sided garbage" like the RIAA is the victim here. They're not one sided in favor of the public. If that were so intellectual property wouldn't last nearly as long as it does.
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Fine, what's your first and last name. Then give me a picture with your drivers license right next to it and I want your IP address, I want mike to confirm it (since he should be allowed to point fingers), and I want you to write the IP address on a piece of paper and hold it up with your drivers license in the high quality picture. Post here.
No, people shouldn't give away personal information about someone to a stranger anymore than a business should do such a thing. Random people can't just ask a blogger for the IP addresses of others. Just like if some random person called a business and asked about a customers personal information. What if I can just look at your nick, ask Mike for your IP address because you said something that somehow offends me, and then go to your ISP and get your address and then post it on techdirt. How would you appreciate that? What if the laws just allow any random person to do that? The laws should do no such thing. The RIAA is no exception. Why should we simply trust them? We shouldn't, especially given their history of being retarded ( http://www.techdirt.com/articles/20090811/0152565837.shtml ).
"Basically, the amount of effort required to prove the case "john doe" to be able to then go and get the information is almost senseless."
The RIAA needs to prove probable cause. If the RIAA has probable cause then they should have no problems proving it to a court. It should require little to no effort. Yet if they don't have probable cause then, yes, it would be very difficult to prove it. That's the whole point. So if you're arguing that it's difficult that just means they don't have probable cause. They don't get to decide on their own whether or not they have probable cause. Otherwise I can just decide right now, by my own standards, that I have probable cause to believe you broke into my house (assuming someone did) and demand your IP address and then demand your address from my ISP and receive it. NO, the system doesn't work that way. The RIAA is no exception.
"Basically, this puts copyright holders in an insanely bad position to start with, because they don't have the ability to know who is stealing their stuff."
So we should just allow them to inspect our houses with no probable cause at will at their arbitrary decision simply because to not allow them would not give them the ability to know who is stealing their stuff. People should simply be assumed guilty until proven innocent because there is the potential someone might be guilty and if we don't invade everyone's privacy then we can't know if you're stealing an artists stuff. Someone might have given you a CD last week with pirated stuff. With that logic we should just allow the RIAA to search your house right now at will without any intervention from courts or anyone. I don't know if you have pirated stuff, so lets all just search your house arbitrarily. Allowing such a thing opens the door to all sorts of abuses.
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So how exactly do you justify personal details being released so that a company can make money when its illegal to release them in order to protect someone being threatened?
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What the RIAA needs is to convince a court that there is probable cause so the court can issue a declaratory judgment saying that there is and requesting iiNet to provide the information needed. iiNet or the user may then appeal (or the user perhaps can ask iiNet to appeal on its behalf, kinda like if I had a credit card and wanted to dispute charges I can have the credit card fight the lawsuit on my behalf). but iiNet can't simply hand over personal information, it opens doors to all sorts of abuses.
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To look at it from another angle, think for a minute about what the music industry is demanding; they want the courts to hand over the power to enforce the law, AND to act completely independent of the traditional legal system.
Do I even need to point out why granting a corporation this kind of power is a terrible idea? Do you honestly believe that any corporation given such power will treat anyone they suspect to be even a minor threat to their business with a single shred of fairness before bringing down the axe?
You are right; we're all being incredibly one sided about this. It's funny how that happens when fundamental civil liberties are threatened, isn't it?
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There are so many issues, it is almost impossible to overcome.
First is internet speed versus "real world" speed. By the time a court case meanders through the legal system even to the point of obliging iiNet to reveal client information, it could be months or years. When you consider that a song can be tranfered in minutes and a movie in hours, the potential for continued hard is incredibly high.
Second, there is the data retained by the ISP. Let's say iiNet retains records for 90 days, but through legal wrangling, it takes 180 days to get a court order for the information (iiNet seems particularly interested in appealing every case). The actual record could be destroyed.
Further, and this is important, all of this legal back and forth and actions is ONLY to get the customer information, so that a whole new legal process can start (and again takes years) to possibly get justice.
There needs to be a legal shortcut in place here: an ISP claiming innocence via the innocent provider concept (such as the "section 230") rules should be required to do so by replacing themselves with their customer directly. Basically, if they say "we cannot stop this, because we are only a service provider", they should be obliged to state who they are providing service for. No "immediate cut off" or anything like that, they should just be obliged to say "this user was on this IP at the time in question" and end of story.
It should always be so simple: Either iiNet is responsible for the activity on their network, or they indicate who is. There should not be a third choice that says "we agree something is wrong, but without a court order, we cannot point you in the right direction".
If need be, the legal system needs to be adapted to allowed for a direct inquiry by the courts on short notice, on the basis of the sworn statement of the copyright holder. It shouldn't be any different than figuring out where a phone number is assigned or who the client is of a cell phone.
Right now, users can hide behind a complicit ISP and operate with total impunity, knowing that the ISP is going to tie the process in legal knots for the next X years, by which time the user has cleared their computer completely, and destroyed any evidence of the file transfers.
The system right now is remarkably one sided.
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If a copyright holder calls the police, they giggle and remind them it's a civil manner, and wish them good luck as the case wanders it's way through the justice system for a few years.
Sort of a different deal, isn't it?
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If the RIAA doesn't have probable cause of course it will be difficult to convince a court of anything. What's wrong with that? Why should we let the RIAA decide if they have probable cause and set their own standards.
"If need be, the legal system needs to be adapted to allowed for a direct inquiry by the courts on short notice, on the basis of the sworn statement of the copyright holder."
No, this is not good enough. On the basis of sworn statements of the copyright holder? Why should we trust the RIAA or anything it says? Because they say so? Not good enough.
"Basically, if they say "we cannot stop this, because we are only a service provider", they should be obliged to state who they are providing service for."
First you must prove there is something to stop. Hence a court order.
"It shouldn't be any different than figuring out where a phone number is assigned or who the client is of a cell phone."
To some degree one can know where an IP address is assigned, usually the hostmask gives a general idea. But one cannot call up a phone company and arbitrarily ask for the exact address of the person.
"There should not be a third choice that says "we agree something is wrong, but without a court order, we cannot point you in the right direction"."
This should be the only option the ISP has.
"The system right now is remarkably one sided."
I agree, intellectual property lasts way too long and the laws are remarkably one sided in favor of rich and powerful corporations at public expense.
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and in criminal matters there is even more justification for finding information about someone than there is for civil matters.
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They defend their archaic business model and have a great big whinge
They will claim its for the artists without the slightest guilty twinge
And on basic human rights they are starting to impinge
Here's the plain situation, there's no negotiation
With the fellas at the AFACT
Brainwashing the government with flagrant misinformation
They will take everyone to court and make them pay reparations
And they pat each others backs with hearty congratulations
Take a tip, take a lesson,you'll never win by messing
With the fellas at the AFACT
And if you find yourself with some amazing song
By playing it your doing something wrong
(and then they'll sue you)
So they sent this little warning, they're prepared to do their worst
and they made up lots of figures, hoping the judge could be coerced
I can think of quite another place they should stick their warning first.
They definitely neurotic, and probably psychotic
They're the fellas at the AFACT
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It's so archaic that even if in a few years, the recording industry wins out and there is no longer piracy of any form, their business model would still fail.
Maybe then they'll just start suing people for not buying music at all.
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Corrupt politicians take bribes and demise for justice to take a backseat.
No matter how much one tries, corporate and political coalitions devise ways to take control.
Always on patrol against those who stand up for what's right. Because they won't let truth prevail without a fight.
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Guaranteed freedom of speech, of the press, and all the rights that people adore.
Freedoms corporations abhor for those they disagree with.
Nevertheless, these are rights people must be with and they must be defended. The tyranny ended with our rights unamended.
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"If the RIAA doesn't have probable cause of course it will be difficult to convince a court of anything."
The problem is that the courts are often not willing to work with or are not understanding of the types of proof that can be given. Imagine the need each time to get in front of a judge and spend 3 - 10 days explaining IP addresses, torrent technology, what data you have, etc, before the courts will even consider your request... and then they say it is a civil matter, you need to sue the ISP and spend months there before they might be obliged to give up the information.
"First you must prove there is something to stop. Hence a court order."
You are wrong here, you don't have to PROVE anything, just show that there is some cause. As I mentioned above, the problem is the technical nature of the proof, which is often beyond the reach of a judge. In the US, they might as an example appoint a special master to review the data and get back to the judge in 90 or 120 days. Not exactly friendly, is it?
ISPs should not be in a position to legal protect their clients. If they are served and want to invoke the local version of "230 protections", then they should be obliged to point in the right direction. Right now they have it both ways, they can say "we are just a service provider" and "we can't say anything ever". So the uiser involved could be an ISP employee, and they can still do the same. It seems like standard truly leaning to one side only, the pirates.
"I agree, intellectual property lasts way too long and the laws are remarkably one sided in favor of rich and powerful corporations at public expense."
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHA. It isn't like you read anything I posted.
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You didn't respond to a single darn thing about 4 posts up this comment thread.
You are so full of shill it is not even funny.
Adapt to the times or die and go away.
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No, just because the RIAA can not provide probable cause does not mean that the courts are unwilling to work with or understand the types of proof to be given.
"Imagine the need each time to get in front of a judge and spend 3 - 10 days explaining IP addresses, torrent technology, what data you have, etc, before the courts will even consider your request"
So your best argument appeals to the imagination and not actual evidence. Wow, is that the best you can do?
Just because a judge isn't quick to arbitrarily grant the RIAA free reign to invade our privacy doesn't mean s/he doesn't understand the technology.
"and then they say it is a civil matter, you need to sue the ISP and spend months there before they might be obliged to give up the information."
Again, if the RIAA doesn't have enough evidence to prove probable cause I should expect it to be difficult to do so.
"You are wrong here, you don't have to PROVE anything, just show that there is some cause."
Fine, let them demonstrate it to the satisfaction of a court, not simply to their own satisfaction.
"ISPs should not be in a position to legal protect their clients."
They should have an obligation to do so, I don't expect any company I do business with to arbitrarily give away my personal information to anyone who requests it.
"Right now they have it both ways, they can say "we are just a service provider" and "we can't say anything ever"."
No, they can say something, demonstrate probable cause to a court first.
"It seems like standard truly leaning to one side only, the pirates."
First of all, society and the laws do not owe the RIAA or anyone a monopoly on anything. We simply do not owe them patents or copyright. So the fact that we grant intellectual property and allow it to last almost forever in and of itself is entirely one sided in favor of rich and powerful corporations at public expense. On top of that you want to make things MORE one sided by giving intellectual property holders free reign to invade our privacy at will? We should tolerate no such ting.
"It isn't like you read anything I posted."
Just because I disagree with you doesn't mean I haven't read what you posted.
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Good luck.
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""The RIAA lists its member labels on their website [1]. However, their website lists not only includes RIAA labels but non-RIAA labels that are distributors that report to the RIAA. The site is outdated and has not been updated since 2003.""
http://en.wikipedia.org/wiki/List_of_RIAA_member_labels
(though that text was omitted for whatever reason, it's still true as one can see from http://www.riaa.com/aboutus.php?content_selector=aboutus_members which doesn't even seem to work right now)
Even a third party must keep track of its members
http://www.riaaradar.com/
This is ridiculous, they can't even keep an updated list of who they sign?
We even had discussions here on techdirt about how they don't keep accurate inventory complaining something about how difficult it is so it's difficult for them to properly pay their artists. Reliable inventory systems have been around for a long time, what, they can't even keep proper inventory?
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"So Why Can't Major Record Labels Provide Accurate Accounting To Bands?"
http://www.techdirt.com/articles/20090619/0323015288.shtml
You know why? Because they're lazy, they want to make money and not do any work. Accurate and cheap to implement inventory systems have been around for years (just ask Wal Mart) but the RIAA, time after time, wants laws that allow it to make money and not do any work.
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You might want to mention that the president is ugly and his mother dresses him funny too.
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Next thing, you'll want people suing other people for NOT BREAKING AND ENTERING other people's homes.
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