Australian ISP Stops Kicking People Off The Internet Following iiNet Ruling

from the evidence-needed dept

Wed, Feb 10th 2010 4:53am — Mike Masnick

It looks like the iiNet ruling is already having some positive impact in Australia. The crux of the ruling is that copyright infringement is not an "I know it when I see it" violation, but rather a complex issue that requires a court to weigh in. Asking an ISP to simply assume that someone is infringing, and thus to kick them off, is problematic and potentially goes against basic due process. It appears that other ISPs are now realizing that they were being too hasty in blocking internet access. Competing ISP Exetel, who used to block access to accused file sharers, has now announced a change of policy. Of course, it could have stood up for its customers' rights in the first place, like iiNet did...

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: australia, copyright, isps, secondary liability, studios
Companies: exetel, iinet

34 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Hephaestus (profile), 10 Feb 2010 @ 5:29am

Things that make you go hmmmm ...
So three strikes is dead before it even had a chance ...

Deep packet inspection to determine what people are downloading is going to violate US wiretap laws ...

secondary liability is a non starter as it will cripple legitamate uses for the internet ...

everything the media distribution industry wants seems to be getting shot down ... that doesnt bode well for ACTA or the UK's digital economy bill in the long run
[ link to this | view in thread ]
Jimr (profile), 10 Feb 2010 @ 5:56am

Hephaestus, You seem to make sense but you forgot the linkage to terrorism. They need to violate your rights and US laws so they can help protect you from terrorist.

Just think of the poor children!

On a more serious note it is good to see some reasonable judgments coming out and a bit more positive spin offs.
[ link to this | view in thread ]
Chronno S. Trigger (profile), 10 Feb 2010 @ 6:20am

Re:
You got terrorists and the children in the same defense, nice. Now if we can just work in the war on drugs and the current state of emergency in the NE US...

I still want iiNet. They need to open a US branch.
[ link to this | view in thread ]
:Lobo Santo (profile), 10 Feb 2010 @ 6:23am

Re: Re:
Ditto!
[ link to this | view in thread ]
Steve R. (profile), 10 Feb 2010 @ 6:26am

Due Process
What is the basis for requiring Person C (the ISP) to automatically intervene to Protect Person A in a dispute between Person A and Person B? In theory, persons A & B should duke it out in Court.

Person C (just because Person A has a lot of lawyers) should not blindly accept that Person A's accusation possess any validity. Anyone can make "false" accusations.

Also as previously noted on other TechDirt comments; in protecting Person A, Person C is forced to assume a great deal of liability and monetary cost. So one would think that Person A should then be required to pay Person C for those costs and to indemnify Person C for any legal repercussions.
[ link to this | view in thread ]
Dark Helmet (profile), 10 Feb 2010 @ 6:30am

Re:
"You seem to make sense but you forgot the linkage to terrorism. They need to violate your rights and US laws so they can help protect you from terrorist."

You're joking, but you wait and see. That claim WILL be made...
[ link to this | view in thread ]
Dark Helmet (profile), 10 Feb 2010 @ 6:32am

Re: Re:
"You got terrorists and the children in the same defense, nice. Now if we can just work in the war on drugs and the current state of emergency in the NE US..."

Plus, and this is important to remember, the RIAA will soon be releasing reports that definitively show that filesharing causes Haitian earthquakes and Iranian nuclear arms development....
[ link to this | view in thread ]
IronMask (profile), 10 Feb 2010 @ 6:41am

It's worth noting that, although a users account was effectively blocked upon reciept of said accusation, you could still access a page at Exetel that gave you the option of clicking a "deny accusation" button that gave your net access back almost immediately. Not ideal by any means, but I suspect it was designed to admonish the ISP of any responsibility.

btw Exetel is my ISP.
[ link to this | view in thread ]
Mr RC (profile), 10 Feb 2010 @ 6:54am

You forgot to invoke Godwins law and mention the Nazi's ... I'm sure it has something to do with them as well...

"They need to violate your rights, to protect the children.. and stop terrorism and drugs (cause we all know that piracy is addictive!).. and because the money from conterfeit sales help evil geniuses build Haitian earthquake machines and sponsors nuclear research in Iran... not to mention funding for the Nazi campaign.... won't somebody please think of Haitian Nazi Pirate scientists children!"
[ link to this | view in thread ]
Chronno S. Trigger (profile), 10 Feb 2010 @ 7:18am

Re:
Well, I wouldn't put it past them to claim that piracy funds the neo-nazi and helps spread the misinformation about the holocaust. They already claimed that giving something away for absolutely no money (probably a loss in the long run) supports terrorism, not too far of a jump.
[ link to this | view in thread ]
william (profile), 10 Feb 2010 @ 7:21am

If iiNet is smart, they should start a marketing campaign right away with the line like, "We don't just bent over when others accuse of you violating the law, unlike other ISPs". Combine that with a slight price drop would probably cause massive customer conversions from other ISPs.
[ link to this | view in thread ]
The Anti-Mike (profile), 10 Feb 2010 @ 7:30am

I think this is just more fuel on the free for all file sharing that will likely take over Australia, at least until the censorship people find out that you can sneak all sorts of naughty stuff past the censors when you use torrents.
[ link to this | view in thread ]
Nick Mc, 10 Feb 2010 @ 8:34am

Puhleese
"won't somebody please think of Haitian Nazi Pirate scientists children!"

Please stop. I've been laughing so hard that I think my spleen just broke.

Nick
[ link to this | view in thread ]
Luci, 10 Feb 2010 @ 9:36am

Re:
Are you still denying a person's rights to both privacy and due process? Do you think this ruling is wrong and, if so, why? Please bring supportive evidence.
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2010 @ 9:39am

Re:
Yeah, just like all those other countries that don't punish those nasty infringers! I'm looking at you Canada! How dare you have a booming entertainment industry when we're not allowed to sue your citizens!
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2010 @ 11:18am

Re:
Yeah, we all know what happened in the US. File sharing took over the country and movies can now only break the highest gross record. How sad.
[ link to this | view in thread ]
PaulT (profile), 10 Feb 2010 @ 12:32pm

Re:
You do realise that *actual* infringers can still be sued, right? It's just that they now need to provide an actual court with some actual evidence, and go through the due process of law rather than a back door.

I know this is hard for you to understand sometimes, but this isn't a green light for everybody to infringe. It simply shifts the burden of proof onto the accusers where it belongs, and allows the accused to defend themselves. Again, this is the behaviour that makes people think you're a paid shill - why else would you be opposed to a ruling that allows people to defend themselves in a court of law?

Now, I wonder if the industry will take this opportunity to offer Australians a comprehensive legal alternative to torrents for most of their content, or if they'll keep up the windowed and restricted release schedules that encourage piracy in the first place...
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2010 @ 1:39pm

Re: Re:
You do realise that *actual* infringers can still be sued, right?

Of course he knows that. He's just a shill.
[ link to this | view in thread ]
Hephaestus (profile), 10 Feb 2010 @ 3:04pm

Re: Re:
Actually they already made that linkage that organized crime and terrorists use piracy for funding. Check the techdirt archives ...
[ link to this | view in thread ]
Hephaestus (profile), 10 Feb 2010 @ 3:12pm

Re:
Actually I was thinking about the children. how are they supposed to fill up their 1 T-byte iPods without free music?
[ link to this | view in thread ]
Dementia (profile), 10 Feb 2010 @ 3:44pm

Re:
Censors?? Can't speak for Australia, but last time I checked, the only one censoring my internet connection is me.
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2010 @ 4:19pm

Re: Re:
But justice is too difficult for people with poor evidence, so TAM would rather just get skip it.
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2010 @ 4:45pm

Re:
http://www.techdirt.com/article.php?sid=20100107/0210227646#c84

"It did give me an idea. For the next file sharing care, we close down the internet, and inspect every computer system attached to see who has the file. Then we charge the infringer $10 per copy, with no upper limit." - Classic TAMMY
[ link to this | view in thread ]
Epsyle (profile), 10 Feb 2010 @ 5:28pm

Re: Re:
I'm in Aus and haven't noticed anything being blocked, or even anything on the morning news about it. They might still be just "thinking" about it.
[ link to this | view in thread ]
Yeebok (profile), 10 Feb 2010 @ 10:15pm

It's pretty telling that the most positive thing about Exetel is that they've decided to follow the law (once the iiNet decision is made) rather than kicking users off based on allegations like they used to. Then they make it a PR exercise about how good they are !? err .. LOL.
I'm an iiNet subscriber, and have never been happier (regardless of the outcome in that case). In the 30+ calls I've needed to make to them in the 18 months I've been with them, one has taken more than 5 minutes and not been resolved first call (and that particular one was a Sunday night, with the Monday being a public holiday). Generally you get answered on the third ring, speak to a person who fixes it, and you hang up happy within 5 minutes. *THAT* Is why I'm with iiNet.
[ link to this | view in thread ]
Yeebok (profile), 10 Feb 2010 @ 10:19pm

Re:
Just last month iiNet halved the price on my VOIP, ($10 off) and then increased my 10(peak) and 15Gb(offpeak) limits to 30 and 30 (there's no such thing as "unlimited" internet in Australia, unless you're with Telstra - who shape their "unlimited" accounts). As an ISP, iiNet really do not need gimmicks, they stand pretty proudly on their service and customer focus.
[ link to this | view in thread ]
Anonymous Coward, 10 Feb 2010 @ 11:12pm

Re: Re: Re:
I'm in Aus and haven't noticed anything being blocked, or even anything on the morning news about it. They might still be just "thinking" about it.

About 1 year (or so) ago, the Sunrise program had a quick segment (regarding the Australian internet filters) and Pete Blasina had a nice rant about how stupid it was. Kochie played the apologist and Mel sat quietly like she didn't want to lose her cushy job.

Since then I've not seen a thing on any mainstream media about it.

But there's been plenty of seizures of counterfeit goods, child pornography arrests, stories on internet dangers (young kid + uneducated mother = internet is bad) etc. etc. I'd postulate that the government is counting on the vast majority of the Australian population not giving a damn about ACTA & filters, and a small segment being convinced by the constant barrage of mainstream FUD*.

*FUD: Search techdirt for TAM's commentary
[ link to this | view in thread ]
The Anti-Mike (profile), 11 Feb 2010 @ 2:39am

Re: Re:
Paul, I know that.

But what is the process?

Let's see. You get an IP address that has an infringer on it, you record all that information, you get your case all set up and ready to go, and then who do you take to court?

Ahh, yes... the ISP.

So now you start with the ISP. Since the ISP isn't obliged to give up customer data easily, you effectively have to spend all the time in court, with all the rules of admissibility of evidence, all the back and forth, maybe depositions, summoning of records, proving without a doubt, etc. Depending on how the ISP decides to play the game, it could take months or even years just to get the customer information that shows who you should have been suing in the first place.

Congrats. Now you know who you should be suing. Now you get to go back to square 1, and start all over, except that all of your evidence is now in public record, and the offender has had a year to completely scrub his computer, destroy and CDs he might have made, empty out his ipod, and perhaps even buy a new computer, get another ISP, etc.

So now you get to spend maybe another year or 5 in court trying to prove that the guy is guilty, but you don't have access to the computer that did the deeds, you have no evidence from his home, etc.

Then you win, finally, and you get a judgement. The user contests the judgement amount, and you spend the next 2 or 3 years wandering from court to court getting contradictory rulings that say the amount should be higher, lower, different, the same, and so on. In the end, you get a judgement for an amount, right from the supreme court of the land, and guess what? The user you sued is broke, and can't afford to pay you anything.

I wonder if the industry will take this opportunity to offer Australians a comprehensive legal alternative to torrents for most of their content, or if they'll keep up the windowed and restricted release schedules that encourage piracy in the first place

What would you consider a comprehensive legal alternative to free entertainment? All movies played at a miniputt with the director? Sorry, I read comments like that, I really can't imagine anything that competes with "and you get it for free, right now".
[ link to this | view in thread ]
vivaelamor (profile), 11 Feb 2010 @ 4:47am

Re: Re: Re:
Damn that pesky due process, stopping the application of bad law.
[ link to this | view in thread ]
PaulT (profile), 11 Feb 2010 @ 5:08am

Re: Re: Re:
So, you're saying "screw due process and the law, 'cause it's too hard"?

Glad I don't live in your world.

"What would you consider a comprehensive legal alternative to free entertainment?"

I believe you're in North America, which means you're wilfully blind to how screwed over the rest of the world often is due to regional "protections". To the best of my knowledge, Australia doesn't have a Netflix-style streaming service, nor an equivalent to Hulu, or any of those other attractive services that they're region-locked out of accessing.

As you mentioned in other threads, Australia is considered to be a small market, so it can be years for some titles to be released there, if ever. Pirated DVDs and VCDs from the far east and grey market imports can be the only way to get certain content, and even legal releases can be sub par.

Remember, an alternative to "free" illegal services does NOT also have to be free. People are willing to pay for a service that offers content on demand with no legal repercussions. Instead of trying to cut people off, offer them the content that they're trying to get, legally.

I know for a fact that I'd pay RIGHT NOW for a Netflix-style streaming service that I can access through my PC and 360, but the entertainment industry have chosen not to offer it to me. Offer me the service, you get my money. Don't bother, then you don't get it. It's incredibly simple if you don't choose to be wilfully ignorant.
[ link to this | view in thread ]
Steve R. (profile), 11 Feb 2010 @ 5:13am

By Logical Extension
By logical extension, anyone at anytime should be able to enter your house and search it for "unathorized" content/products.

A while back, I ran across this quote from John Perry Barlow:

"The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent."
[ link to this | view in thread ]
RD, 11 Feb 2010 @ 6:47am

Exactly!
"Remember, an alternative to "free" illegal services does NOT also have to be free. People are willing to pay for a service that offers content on demand with no legal repercussions. Instead of trying to cut people off, offer them the content that they're trying to get, legally."

Exactly. I have Netflix and use the streaming via my 360 ALL the time. This is a FANTASTIC service. It doesnt have nearly every movie or tv show, but even as it is, its well worth the $9 a month just for the CONVENIENCE of it. I'd pay up to $20 a month if it had literally EVERYTHING as well. I've bought several things after I had had a chance to see it this way as well.

But Big Media and TAM and his ilk see this as some kind of non-market, or outright theft (since I am not BUYING EVERY SINGLE ONE I WATCH). They are missing out on a HUGE revenue stream here. They just dont get it.

And no, TAM and his corporate masters dont get to play the "Well, only a SMALL part of the market would be interested in such a service" card either, because SO IS 'PIRACY'!! If "piracy" is such a HUGE problem, then create a better mousetrap. So far, Netflix streaming is the closest thing, it just needs to have ALL movies/tv on it, and playback on more devices.
[ link to this | view in thread ]
Chiropractic Marketing, 11 Feb 2010 @ 8:46am

ISP
I we wist to start an ISP. Can any one help me please. Where I should start? What I should know? How much investment needed approximately?
[ link to this | view in thread ]
Epsyle (profile), 11 Feb 2010 @ 7:14pm

Re: Re: Re: Re:
Ah that would explain it then, kinda stopped watching the morning shows most of last year. xD - Hmm, so we're in the ACTA too? Damn it. I need to pay more attention.
[ link to this | view in thread ]