Australian Anti-Piracy Group Threatening ISPs With Legal Action... Even Though Court Already Ruled Against Them

from the fantasy-land dept

Tue, Jul 12th 2011 10:08pm — Mike Masnick

Apparently, the Australian "anti-piracy" group AFACT (Australian Federation Against Copyright Theft) is living in a bit of a fantasy land. Despite losing badly in the courts twice by trying to force iiNet to act as a copyright cop, without knowing what is and what is not infringing content, AFACT is now warning other ISPs that they must become copyright cops, or else.

The letter makes several references to the Federal Appeal Court's February ruling on AFACT's bid to make ISPs liable for copyright infringement by their customers.

It gives Exetel seven days to indicate whether it will "attend a meeting with AFACT" to discuss a system of graduated responses to online piracy.

It seems kind of bizarre to cite a ruling in which you lost badly, as a reason why others need to do something that the court said iiNet didn't have to do.

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Filed Under: afact, australia, copyright, isps, liability

15 Comments

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TechnoMage (profile), 12 Jul 2011 @ 11:46pm

Not Bizarre at all, sadly.
Mike you said:
It seems kind of bizarre to cite a ruling in which you lost badly, as a reason why others need to do something that the court said iiNet didn't have to do.
Sadly, no it doesn't. In what other part of their business practices have any 'anti-piracy' or recording industry groups shown a willingness to accept any reality that doesn't fit the one they want.

From the Wikipedia article on Truthiness:
"Truthiness is a "truth" that a person claims to know intuitively "from the gut" without regard to evidence, logic, intellectual examination, or facts."

That sounds exactly like what AFACT is doing here...
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Josh, 12 Jul 2011 @ 11:59pm

Hope it is all just hot air
But there were comments made by the judge in the last ruling that AFACT seems to be interpreting as meaning an ISP does need to do something if AFACT (or some other copyright holder) issue notices the right way. I really hope the interpretation AFACT are taking on this is not going to be upheld by the law. It would be a very scary precedent for a service provider to be required to take actions against their customer based on allegations by a third party.
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mike allen (profile), 13 Jul 2011 @ 12:11am

there is no reason why any ISP should act as a copyright cop beside the way they work in Oz is a bit odd a friend of mine down under says its a kind of pay as you go with most ISPs. Feel free to correct that if you know better.
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The eejit (profile), 13 Jul 2011 @ 12:13am

Re: Hope it is all just hot air
And a third party that's not even lkaw enforcement, at that.
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Lauriel (profile), 13 Jul 2011 @ 12:41am

Re:
Sort of. There are some initial contracts (like with a mobile phone carrier) but after that you just pay on a monthlty basis. The packages are graded (little bandwidth, low speed cheapest > high bandwidth, high speeds cost more).

So it isn't quite pay as you go, but yes, we're not locked into long term contracts as a general rule. That said, there are only so many ISPs. When the majors inevitably fold (to stay in the government's good books, so they get lucrative deals on the new National Broadband Network currently underway), then the smaller players will follow suit.

Still hoping this doesn't happen, and they follow iiNet's lead and tell AFACT where to go. :)
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Anonymous Coward, 13 Jul 2011 @ 12:46am

Theft vs Infringement
AFACT seems to be hazy on the difference between copyright theft and copyright infringement. Theft is when someone's copyright is removed from them so that they do not have it any more. For example, Bridgeport Music vs George Clinton. Copyright infringement is when certain acts of copying, as defined in the legislation, are performed by persons not authorized by the copyright owner. The copyright owner keeps their copyright, even though it may have been infringed. Deciding whether infringement has occurred is difficult and technical.

Judges tend to be markedly unimpressed when persons appear before them, who decline to use the correct terminology. The terminology is defined in the legislation. Judges expect all lawyers and clients to know it and use it correctly.
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Chris Rhodes (profile), 13 Jul 2011 @ 1:02am

Hmm
Sounds like they don't have . . .

*puts on sunglasses*

A FACT in their favor.

*yeeeeaaaaaaaaahhhhhhhhhhhh!*
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mike allen (profile), 13 Jul 2011 @ 1:17am

Re: Re:
thank you for that slightly differant to what i was told, that he buys hours on line. very usefull information.
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hmm (profile), 13 Jul 2011 @ 1:18am

selective hearing/reading
Copyright was originally enacted by Congress.
Is the defendant present?
AFACT has accused you of theft of something they state own
Do you deny the charges?
will you be defending yourself?
Does AFACT have any further facts to put to the Judge?
Some people have heralded the Internet as the death of copyright.....

AFACT [redacted] "what I wanna hear" version..

Copyright .................................
Is ......................
..........................theft......................
...you ..................
will.....be..................
..........................................put to.......
..............................................death......
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Paul`, 13 Jul 2011 @ 1:19am

Re:
Not really, We have had capped bandwidth forever but for as long as I can recall there have been regular internet plans.
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G Thompson (profile), 13 Jul 2011 @ 1:55am

Re: Hope it is all just hot air
The comments made by the Judge in question were what is called in legalese 'obiter dicta[m]' and are only made in passing so to speak and are not used in their decision to reach a verdict either way, in fact they are just thoughts that the judge uses to speculate on maybe's and other possibilities or hypotheticals. Aussie legal beagles love hypotheticals - Just ask Geoffrey Robertson [*in joke for Aussie legal profession*].

Obiter, carry no legal weight whatsoever in the decision handed down and are therefore not binding on any party.

In this case it does suggest an interpretation of the current law that though it has has no bearing on the decision handed down, that totally wiped the floor with AFACT's specious arguments, this obiter might be useful in future cases.

This is because though it is an off-the-cuff and non-binding remark, having been stated by a judge, and in this case a High Court Judge of Australia (equivalent is Supreme Court in the USA) it can be interpreted as binding precedent in certain circumstances, as well as being extremely influential and persuasive to any lesser courts.

Therefore it is advisable to take this sort of obiter with more than just a grain of salt.
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The eejit (profile), 13 Jul 2011 @ 4:49am

Re: Hmm
I'm sorry - the poster above has been incarcerated for memetic murder pending a kangaroo court trial resulting in pain and possibly death.

We will no resume our scheduled programme.
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Anonymous Coward, 13 Jul 2011 @ 5:11am

Well, at least we know what the Black Knight is up to these days. Lost a court case? "It's just a flesh wound!"
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Beta (profile), 13 Jul 2011 @ 6:46am

RSVP
'[The letter] gives Exetel seven days to indicate whether it will "attend a meeting with AFACT" to discuss a system of graduated responses to online piracy.'

Dear AFACT,

Will it be within walking distance of our offices, and will there be snacks?

Sincerely, etc., etc.
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Anonymous Coward, 13 Jul 2011 @ 7:54am

Re: Hope it is all just hot air
Not unusual at all - just look at the recent announcement of US ISPs harassing their paying customers based solely upon allegations from RIAA etc. Not good, for sure, just sadly not unusual.
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