iiNet Wins Again: Australian Appeals Court Says ISP Not Responsible For Copyright Infringers

from the another-big-win dept

Thu, Feb 24th 2011 9:12am — Mike Masnick

A little over a year ago, in a huge victory for common sense, an Australian court ruled against some Hollywood studios arguing that Australian ISP iiNet was legally liable for not magically blocking copyright infringement and punishing people the studios accused of infringement. As iiNet explained, it had no reasonable way to act. The studios would send notices to iiNet, but notices aren't proof, so iiNet told them to go 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 court's ruling was a great read, and very carefully laid out why it makes no sense for ISPs to be copyright cops, because determining whether or not something is infringing is a job for the courts, not some random company:

Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation.

Of course, the studios appealed -- falsely telling the press that the original ruling would mean that unauthorized infringement was allowed in Austalia. But, of course, nothing was further from the truth. The ruling simply said that ISPs weren't liable for the actions of their users, especially in copyright situations where it had no reasonable way to determine the veracity of claims from the studios.

Thankfully, the appeals court has once again sided with iiNet and dismissed the appeal, saying that it has no business being a copyright cop. The ruling again noted that there was no reasonable way for iiNet to know who was really violating copyrights, and "general knowledge" simply isn't enough to put the liability on iiNet.

"I do not think the respondent could reasonably be expected to issue warnings, or to terminate or suspend particular accounts, in reliance upon any such notice in circumstances where it has been told nothing at all about the methods used to obtain the information which led to the issue of the notice," Justice Nicholas said.

"Nor should it be up to the respondent to seek out this information from a copyright owner who chooses not to provide it in the first place."

It's expected that the anti-piracy group AFACT, who led this legal fight, will appeal to Australia's high court, but in the meantime, it's making a bunch of noise about how the government needs to step in and help. Given the sort of lobbying power we see on this issue (including massive diplomatic pressure from the US), don't be surprised to see legal changes attempted on this issue quite soon. However, politicians would be wise to heed the points raised in the original decision about the silliness of putting the burden on ISPs rather than the copyright holders -- the only ones who actually can reasonably do something in these situations.

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Filed Under: australia, copyright, isps, secondary liability
Companies: afact, iinet, village roadshow

36 Comments

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lavi d (profile), 24 Feb 2011 @ 9:34am

Reworded
...so iiNet told them to go to the police:
So iiNet told them to go pound sand.
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coldbrew, 24 Feb 2011 @ 9:46am

Re: Reworded...incorrectly
You believe the police fail at their jobs, so you would prefer vigilante justice? Is that correct?
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:Lobo Santo (profile), 24 Feb 2011 @ 9:54am

At my place...
I actually built in a magical "stop all piracy on this local subnet" button for my home network, just so I there would be one for me to not push.
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Anonymous Coward, 24 Feb 2011 @ 9:58am

If the ISP isn't responsible, they should be responsible to provide information regarding who was on a given IP at a given time, and to do so in a timely manner. Infringing users are able to use the ISP as a shield, and that really isn't the intention, is it?
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coldbrew, 24 Feb 2011 @ 10:01am

Re: At my place...
Wait...you're continuing this inane_babble_comment thing?

The people I share my consumer connection with have no idea what a network admin can do, nor do they want to how to use open-drt :)
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Chargone (profile), 24 Feb 2011 @ 10:03am

Re: Re: Reworded...incorrectly
or there might be that whole criminal/civil law thing. not sure if that applies in australia.

or it might be that, unlike various lawyers and companies in the USA, the police don't really have spare resources for prosecuting on unwinable or frivolous cases.

or it could be because iiNet has no responsibility and refused to roll over and pretend they did, therefore making any attempt to pressure Them into action an exercise in futility.

or the poster is using the term 'pound sand' to mean the equivilant to 'sod off'.

and even if it IS that they think the police fail at their job, this is not necessarily a call for vigilante justice. more commonly it'd be for reform of the system.

i'm probably feeding a troll here, but it amuses me to point out the fail :)
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ChurchHatesTucker (profile), 24 Feb 2011 @ 10:05am

Re:
ISPs should hand over information on the basis of a mere accusation, says the anonymous coward.

It's only privacy when it's MY privacy.
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The Infamous Joe (profile), 24 Feb 2011 @ 10:08am

Re:
IP addresses do not equal people. A witch hunt helps no one.
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coldbrew, 24 Feb 2011 @ 10:08am

Re: Re: Re: Reworded...incorrectly
Did you just call me a troll? I'm so lost o_O
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Chargone (profile), 24 Feb 2011 @ 10:12am

Re:
yes. to the Police, not the company, if the police actually consider the accusation worth investigating and come back with a warrant. (or equivalent process)

that's the entire point in the exercise here, really.

basically, the ISP is under no obligation to do anything (and if it's anything like NZ, plenty of legal obligation NOT to comply with this sort of request in the way the companies want) without a court order. to get that court order the company has to go to court with an actual case. the sort of random, non-specific, and often downright Wrong filings they tend to make make this very unlikely to work, especially as they don't even know who they're trying to sue.

i'm probably not explaining this well, but it's a fun little loop. it's not technically impossible to bring a case, but if everyone acts as they're Supposed to, rather than rolling over in the face of threats and bribery (for a miracle, this is happening so far) suing (or, FAR more likely, threatening to do so then taking 'settlement' money instead) random individuals is probably not going to get them far at all.
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harbingerofdoom (profile), 24 Feb 2011 @ 10:18am

Re:
no, thats not the intention. the intention is to not force ISPs to be forced into a position where they have to make a decision based on legal and technical information that they are not suited to make either based on insufficient information or legal standing to make such a decision.

to say that this ruling merely allows infringers to use their ISP as a shield is an outright falsehood. what it allows is ISPs to not have to worry about playing copyright cop which is a job they are ill suited for to begin with and puts the burden of providing sufficient and correct information to begin legal proceedings on the copyright owner forcing them to follow existing law and precedent rather than trying to shortcut the entire process to the benefit of them exclusively.
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Anonymous Coward, 24 Feb 2011 @ 10:21am

Re:
Gotta love paytard logic fail:

If the telephone company isn't responsible, they should be responsible to provide information regarding who was on a given phone line at a given time, and to do so in a timely manner. Terrorists are able to use the phone company as a shield, and that really isn't the intention, is it?

or to the truly paytarded out there:

If the highway agency isn't responsible, they should be responsible to provide information regarding who was on a given stretch of road at a given time, and to do so in a timely manner. Child rapists are able to use the highway agency as a shield, and that really isn't the intention, is it?

Tard.
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Killer_Tofu (profile), 24 Feb 2011 @ 10:28am

Re:
I believe you infringed on copyrights, and you now need to send me all of your personal information. You are no longer allowed to hide behind the name of 'Anonymous Coward'. Until you do so I will simply take it that you agree with our side of the argument because you value your privacy, as do the rest of us here.
There are reasons court cases require proof to win, and not just somebody saying 'the other guy did this!'.
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coldbrew, 24 Feb 2011 @ 10:28am

Re: Re: At my place...
wrt*
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Rose M. Welch (profile), 24 Feb 2011 @ 10:49am

Re: Reworded
So... You're upset with iiNet because the police have better things to do than combat what should be a civil issue?
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Berenerd (profile), 24 Feb 2011 @ 11:44am

Re:
Ok so tell me your real name as I suspect you hacked the bank of America.

If you give me your real contact info, I will side with you, if you don't then obviously just making an accusation is not enough to warrant privacy violations.
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Kirk (profile), 24 Feb 2011 @ 11:56am

If you give me your home address, facebook login info, and send me pictures of all the contents of your wallet, I still won't side with you, but I'll respect your opinion.
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athe, 24 Feb 2011 @ 12:30pm

Response to: Anonymous Coward on Feb 24th, 2011 @ 9:58am
Take read of Australia's privacy laws sometime. We have some of the strongest in the world. And even then, our copyright laws are more focused on intentional, business like infringement, not personal copying (at least last time I looked).
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Josef Anvil (profile), 24 Feb 2011 @ 12:32pm

Ok that was FUNNY
Sometimes the obvious is SO obvious that we just don't think about it. I'm actually AMAZED that its not been stated here before, or maybe I just didn't see it.

Copyright infringement is a crime. We hear about the lawyers and the court battles all the time but for once the courts got it spot on. It's a crime, so the police need to be involved first. Someone needs to be arrested and brought to court.

Lobbyists don't like that kinda talk because its hard as hell to arrest tens of millions of people. Might as well declare a free pass month on murder, rape, theft, and of course, child porn.
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Anonymous Coward, 24 Feb 2011 @ 12:40pm

Re: Ok that was FUNNY
Commercial infringement is a crime.
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Anonymous Coward, 24 Feb 2011 @ 12:46pm

Re: Re:
"Gotta love paytard logic fail:

If the telephone company isn't responsible, they should be responsible to provide information regarding who was on a given phone line at a given time, and to do so in a timely manner. Terrorists are able to use the phone company as a shield, and that really isn't the intention, is it?

or to the truly paytarded out there:"

You're right, I believe you to be the person responsible for 911 I want your ALL your info in a timely manner, and don't try and tell me you have some right to privacy, I think it was you and according to you is enough to release the info.

thanks
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btr1701 (profile), 24 Feb 2011 @ 1:29pm

Re:
> If the ISP isn't responsible, they should
> be responsible to provide information
> regarding who was on a given IP at a given
> time, and to do so in a timely manner.

Which they're happy to do... if presented by a subpoena signed by a judge. No company should be handing out personal information on its customers just because some other company or individual demands it.
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JMT, 24 Feb 2011 @ 2:52pm

Re: Ok that was FUNNY
Downloading movies, etc for non-commercial use isn't a crime, it's a civil matter. Even if you believe action must be taken (and that's a whole different argument), it should only be dealt with through civil court, not the police and definitely not directly between companies.
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Anonymous Coward, 24 Feb 2011 @ 3:01pm

Re: Re:
yes, to the police. But the police have to be charged to handle this sort of thing. Most police don't know how to take the complaint, let alone investigate it. When you do find one to do it, the ISPs tell them to pound sand.

See the problem?

In the case of civil suits, it should be sufficient for a plaintiff to provide a list of IPs, dates, and times to a court, and have the court order a list of users / contact information to match from the ISP, in a reasonable time frame (days and weeks, not years as some are trying). The adversarial system s based on the two parties meeting in court. If there is no sane, timely way to get the defendant's information, justice is denied. That is an intolerable situation.
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Anonymous Coward, 24 Feb 2011 @ 3:02pm

Re: Re:
File it in court, and we can talk.
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Justin Olbrantz (Quantam), 24 Feb 2011 @ 3:09pm

Re: Re: Re:
K, so we'll talk when AFACT files in a court to have people disconnected from the internet as part of the (as legislated) legal proceedings.

Oh wait, they've never done that? That's not what this case it about at all? My bad.
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Black Patriot (profile), 24 Feb 2011 @ 3:20pm

Re: Re: Re:
The reason the Police will likely tell you to bugger off is because they have far better things to do with their time. Personal infringement (i.e. non-commercial) is not a criminal offense in Australia, it is a civil one, as such the Police are not obligated to investigate anything.

Futhermore this ruling clearly indicates that the Australian courts do not think that an IP address is sufficient proof of identity. Therefore the basic message to all the movie companies that want to start trying to sue people for infringement is that they'll have to do their own research and gather factual proof before any civil case can proceed.
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Chargone (profile), 24 Feb 2011 @ 4:28pm

Re: Re: Re: Re: Reworded...incorrectly
well, i said it was likely that you were, which is not Quite the same as saying you are.

that or you were making a reference to previous comments and/or articles of the type in a humorous fashion which i missed.

yay options!
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Anonymous Coward, 24 Feb 2011 @ 4:36pm

Re: Re: Re: Re:
But that's just too hard! It's sooooo unfair! Pay me!
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Anonymous Coward, 24 Feb 2011 @ 5:54pm

Re: Re: Re:
Yes but why... you dont want to.

Oh wait - you tried that... "John Doe" is acceptable allowing for notification and preliminary hearing on disclosure before a court.

So why don't YOU file one first!
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G Thompson (profile), 24 Feb 2011 @ 6:18pm

Re: Re: Re:
The police have ample resources to do things in Australia. In Fact iiNet actually sent a lot of what AFACT sent them on to the police and the police did what any other police force do in this sort of situation.

1. Are the allegations of wrongdoing a CRIMINAL matter for EACH individual allegation.
2. Do they fall within the jurisdiction of State or Federal Police
3. Are the complainants willing to PERSONALLY sign a witness complaint UNDER OATH for EACH individual allegation.
4. Is there enough reasonable suspicion based on gathered evidence for an investigation to take place.
5 If an investigation takes place is there then enough substantial evidence that a crime has been committed for a magistrate to ask for a warrant For EACH INDIVIDUAL instance to give to the ISP asking for identifiable information so that a CAN (Court Attendance Notice ie: charge) can be issued against the individual/owner of stated IP number.

If ANY of the above fails then the police will ask the complainant to come back when they have more to go on and no sooner.

This is called Due Process, Natural Justice, or Procedural Fairness take your pick and our police forces and courts are based on it.

As for your premise that a civil suit MUST give a plaintiff all the power over both the court and defendant by totally wiping out rules of evidence, and allowing third party hearsay, with no equity whatsoever. Seems you must like Fascist societies with Star Chambers instead of courts.

And stating that "Justice is denied" due to one side not getting their way by not allowing equitable processes to occur shows you have no comprehension on what justice actually is.
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G Thompson (profile), 24 Feb 2011 @ 6:22pm

Re: Re:
Its all the trees fault..

They extract oxygen allowing all these criminals to breathe!

The Axe must fall!
The Trees must PAY!!!
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TN, 24 Feb 2011 @ 9:55pm

At the moment, we've got a hung parliament. It'll probably be a while before legislators have the balls to put this issue on the table, at the bidding of lobbyists, especially with the current government needing the Greens to stay onside -- the Greens not being known for their love of lobbyists or demands from US businesses.

Also, we're still in a bit of a lovefest with Assange. Generally, we think he's a bit of a wanker, but we like what he does, which means the US comes off less than rosy. At the moment, changing how we do things to please the US, would go down like a lead balloon.

Not saying it won't happen, but I'm thinking, just not anytime soon.
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Killer_Tofu (profile), 25 Feb 2011 @ 6:40am

Re: Re: Re:
Thank you for helping me prove my point that the labels or any organization "representing" artists should have to go to court or to the law, and not just another private organization. I am glad you see our side of things.
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Francisco de Zaval�a, 26 Feb 2011 @ 4:19am

Full ruling?
Mike,

Can you point me to the full ruling?
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Anonymous Coward, 18 Feb 2012 @ 4:08am

Re: Full ruling?
I know it's late but I just saw this.

The Original Decision is here.

The appeal is here and the Order is here.
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