Hollywood Loses Its Big Copyright Lawsuit Against ISP iiNet Down Under
from the secondary-liability dept
Well, here's some good news on the copyright front down under in Australia. You may recall that, back in 2008, a bunch of Hollywood studios (along with two Australian movie studios, just to make it seem "local") sued Australian ISP iiNet for failing to "do enough" to stop infringement. As far as we can tell, Hollywood basically wanted iiNet to wave a magic wand. We later learned, thanks to a US State Department cable leaked via Wikileaks that, not only was the MPAA really behind the lawsuit (though it tried to keep its involvement secret), but that it chose iiNet (the third largest Australian ISP) on purpose: they were "big enough to be important" but not big enough to have the resources to fight back (in the tangled mind of the MPAA). This, like so many MPAA actions these days, turned out to be a serious miscalculation.iiNet fought back, and fought back hard -- and won at every single level in the court system, including today's High Court ruling that effectively ends the case. Oh yeah, the High Court also says that Hollywood has to pay iiNet's legal expenses -- approximately $9 million.
From the beginning, contrary to the MPAA's assumption, iiNet fought back hard. Beyond the obvious, which was pointing out that as a service provider it was not responsible for its users' actions, iiNet also protested that the notices the MPAA's anti-piracy front group AFACt, was sending were deficient:
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 original district court ruling was fantastic, and did such a great job illustrating why it makes no sense to blame third party service providers for infringement -- because infringement is not an absolute, but requires a court to decide what really is infringement. As the original ruling stated:
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. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.In other words, just because someone accuses someone else of infringement, it's ridiculous for the ISP to automatically assume infringement has taken place. That turns the basic concepts of due process on their head. AFACT/MPAA appealed and lost again, with the court once again pointing out that general knowledge that someone on your site infringes is not nearly enough to terminate or suspend users.
This latest (and final) ruling basically takes the same stance. The full ruling is a bit dry, but makes some salient points. It notes, for example, that as a mere ISP, iiNet has absolutely nothing to do with BitTorrent and can't control the fact that some of its subscribers used BitTorrent. It also notes that iiNet was not hosting any of the material, nor doing anything with the infringing material. On top of that, it notes the pointlessness of AFACT/MPAA insisting that iiNet has to kick people off the internet:
Termination of an iiNet account with a customer who has infringed will assuredly prevent the continuation of a specific act of communicating a film online using a particular .torrent file on a particular computer. Regrettably, however, on receiving a threat of such termination, it is possible for a customer to engage another ISP for access to the internet on that computer or access the internet on another computer using a different ISP. Whilst any new infringement would be just as serious as the specific primary infringements about which the appellants complain, this circumstance shows the limitations on iiNet's power to command a response from its customers, or to prevent continuing infringements by them.And, once again, the court finds that mere notice of infringement certainly is not proof of infringement, and requiring iiNet to investigate further is too big a burden:
Updating the investigative exercise in the AFACT notices would require iiNet to understand and apply DtecNet's methodology – which, among other things, involved a permission to DtecNet from AFACT to use the BitTorrent system to download the appellants' films. Before the filing of experts' reports in the proceedings, the information in the AFACT notices did not approximate the evidence which would be expected to be filed in civil proceedings in which interlocutory relief was sought by a copyright owner in respect of an allegation of copyright infringement. Also, any wrongful termination of a customer's account could expose iiNet to risk of liability. These considerations highlight the danger to an ISP, which is neither a copyright owner nor a licensee, which terminates (or threatens to terminate) a customer's internet service in the absence of any industry protocol binding on all ISPs, or any, even interim, curial assessment of relevant matters.All in all, this is a good ruling concerning copyright and secondary liability -- and a bunch of money down the drain for the MPAA, who could have spent this time helping its studios to innovate, but has instead focused on this quixotic legal strategy.
iiNet's inactivity after receipt of the AFACT notices was described by the appellants as demonstrating a sufficient degree of indifference to their rights to give rise to authorisation. However, the evidence showed that the inactivity was not the indifference of a company unconcerned with infringements of the appellants' rights. Rather, the true inference to be drawn is that iiNet was unwilling to act because of its assessment of the risks of taking steps based only on the information in the AFACT notices. Moreover, iiNet's customers could not possibly infer from iiNet's inactivity (if they knew about it), and the subsequent media releases (if they saw them), that iiNet was in a position to grant those customers rights to make the appellants' films available online.
Of course, it doesn't sound like this ruling will have the MPAA come to its senses either. The AFACT front group is already claiming that the ruling means Australia must change its laws to turn ISPs into copyright cops:
The Australian Federation Against Copyright Theft (AFACT) is ramping up the pressure on the government to act. It said today's judgment exposed the failure of copyright law to keep pace with the online environment and the need for the government to act.No, Neil, it's not Australian law that's the problem. It's reality, and the fact that the movie studios refuse to bother to understand how the internet works and how they can adapt. No law will fix this. It will only make things worse. And Gane and the MPAA should be careful, lest they think they can try to pass another SOPA down under. I get the feeling that won't go over well.
"It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks...," AFACT managing director Neil Gane said.
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Filed Under: australia, bittorrent, hollywood, liability
Companies: afact, iinet, mpaa, wikileaks
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General knowledge "rule"
After all, "what's good for the goose is good for the gander"...
/I know, never happen. Would still love to see the bluster and outraged looks on their faces if presented with the idea.
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typical entertainment industries attitude.
'it isn't anything to do with us or what we're doing. it's to do with everyone and everything else not doing what we want to protect the shit we keep dishing out at exorbitant prices and expect everyone to buy.'
for Christ's sake get a grip you lot, will ya? why should you stay the same, expect everyone else to go BACK, rather than advance with technology, just so you can keep milking the public to your hearts content?
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Score one for the good guys
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FTFY
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I've written this song before:
Second verse, same as the first.
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Nothing is capable of "protecting" content once it hits the internet and peer-to-peer networks. If content is on the internet, it will be shared. That is the way the world works.
But what really kills me is the word protecting, as if being locked down was what was best for content.
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http://www.bbc.co.uk/news/technology-17785613
Every good decision is cancelled out by several bad ones.
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Ironically the Hamburg court is located in the very city that uses open source software to conduct all its business. Not that there's a direct connection between the two but it is ironic.
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From other stories, GEMA is a very aggressive royalty collection agency. The question arises: who is more motivated to push back - YouTube, who can only lose money in these endless lawsuits, or the general population, who loses cultural icons from takedowns?
Perhaps it's time for YouTube to block all submissions from Germany again and post links to GEMA and its subscribers. The internet is waking up; yell loud enough and our voices can be heard on the 30th floors.
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Every good decision is cancelled out by several bad ones.
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The Australian court ruling is lacking, because it fails to explain how to deal with this sort of situation in a way that is meaningful for everyone. Just legally throwing up your arms and saying there is nothing to do is not acceptable.
My guess is Aussie laws will be changed to address this problem.
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All they have to do is to determine who is distributing infringing files and punish them. The law already states that copyright infringement is illegal, and the mechanisms to deal with it already exist.
Is it hard work? Hell yes! But most jobs require hard work, so hard work is not an excuse for trampling the law.
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It pretty much is saying the ISPs CANNOT act as copyright cops based on ALLEGATIONS (of which there is nothing in the way of verifiable, much less reliable, proof/evidence of wrongdoing).
Now, what that means, kid, is that the copyright holders need to up their game and their evidence gathering. I.e. Instead of using funds as stupidly as they do to tell others what they want them to do to protect them, use those funds to come up with foolproof evidence gathering techniques. Which will be proof/evidence rather than "we say this person is doing bad so just believe us".
My guess is you're still an idiot. And Aussie laws will NOT be changed to address "this problem" but will be changed to say "you can't blame others and force them to do YOUR work for you". Which is what Hollywood is trying to do.
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if only partially in some cases.
even if it did require blatant opportunism and abuse of the system using disaster relief as a mask...
grrr...
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Yes, and run into the same wall with the ISP - we can't give you customer information, and we will fight you in court every time you try to obtain it.
"My guess is you're still an idiot. "
My guess is that you are a clueless freetard, running two copies of BT at the same time and seeding your favorite gay twink porn as fast as you can to get social standing points in your forum of choice, all the while expecting to get paid for sending people to your file locker site of choice.
Tard.
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If the evidence you had actually held more water then maybe you wouldn't encounter this problem.
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Personally, I'm having trouble coming up with an opinion more idiotic than that....
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Seems any idiot can have an opinion.. and most do.
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Actually that is NOT correct. NO Australian court stated that, they just stated that the so called evidence that the copyright holders collected needs to follow full procedures under Australian law. Which requires that the copyright holder fully lay out whow where and what information they have obtained and why it is a foundation for the basis of their allegation. How is the evidence obtained, how relevant is it, etc. Oh and give it to the PROPER authorities. ie: The Australian police if they are trying to convey something that falls under criminal sanctions. Otherwise go to a court, present your evidence and do what anyone else has to do. No fear nor favours in this place.
My guess is that you have no clue about laws and democratic procedures in any country let alone your own (USA I will posit) and are currently butthurt that some court (the Highest court) had the audacity to give you and your ilk a dose of good old reality and Aussie Common Sense. Though not as butthurt as AFACT is now.. $12mill at last estimates for legals.. oops!
Oh and for your education since this decision was given by a Court that is granted the same status as the US Supreme court (SCOTUS) this decision carries a huge weight for other countries around the world, especially those within the commonwealth (ie: India, Canada, New Zealand) get used to more losses in the courts.
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The issue is that, at that point, they have to file as a doe, because they have no idea who the person is, and the ISPs turn around and say "we don't know either" or "we don't log it" or "we aren't going to tell you until you get a conviction" or other claptrap to basically block the attempt to get anything done.
The effect is to add enormous costs to every lawsuit filed, requiring an incredible amount of work just to pry the information out of the ISP to even allow the original suit to be filed, and then spend another shit pile of money to prove the user guilty, only to discover that he is an outback sheep f---cker with $3 and a rusty ute to his name.
It's basically telling copyright holders to jump in a lake, it will cost too much for you to defend your rights.
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In other words, they have no case. So what the fuck are we talking about?
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Actually they don't. They can go to the police, state this is all their evidence sign, statutory documents under Oath that criminal acts have been committed. Then the police take over the investigation and decide whether to go ahead. The problem with all the so called Evidence that AFACT had was that it was third party hearsay that had no relevance and no authenticity behind it.
Also remember we do not have Statutory damages in Australia so going civil is pointless unless you can PROVE damages to the full satisfaction of a court (not jury) after all other elements are proven of course.
Adding enormous costs to every lawsuit is a red herring since Business liability insurance would cover it... If it doesn't, well maybe your in the wrong business and need to do something different.
The problem isn't the costs, its the time.. And the **AA organisations that do not like Australian laws that are more equalised than most places especially when it comes to consumers, trade, privacy and tort reform.
If you think it's telling copyright holders to jump in a lake, you are not looking at the holistic situation nor the ethics involved from an unbiased viewpoint, instead you are only concerned about one side that can do no wrong.
I really hope you are not in the legal industry nor in business because unless you can look at all sides you will never succeed in any strategic plans you will make in life. The balance for law needs to be placed on both sides. Luckily in civil laws within Australia the onus of proof is fully on the plaintiff to prove everything including damages.
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Don't confuse criminal and civil.
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Civil has no statutory damages in Australia. Civil requires FULL evidence of damages (and not just on balance) once the other elements have been proven based on balance of probability. Though rules of evidence still fully apply within Civil cases in Australia the same way they so in Criminal cases.
Onus of Proof in these instances are fully on the plaintiff, as they are on prosecution.
What part of this don't you understand?
Basically AFACT were trying to skirt around the court system to make iiNet responsible for doing everything instead of going to the court and showing just cause why an Anton Piller order (look them up they are not USA) was required to search, seize and identify.
The court has soundly stated they are the only ones that can authorise this.
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you people are ####### pathetic. do you want to inject aids into people who you think infringe too?
im logging off for a while. this is making me pissed.
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What an entitled prick you are. Did you really think that everyone has the money to buy laws that favour your position?
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No, they only did it this time because the copyright holders or someone acting at the behest of Hollywood was trying to make the ISP terminate accounts based on allegations. Something which the ISP was not legally required to do. And which the judge, wisely, ruled stating basically the same thing. Allegations DO NOT equal proof/evidence. As such the ISP cannot do anything based on the allegations, else they run the risk of being sued themselves.
Now, if there was actual proof/evidence of wrongdoing that was linked to a specific person, as opposed to a household in general, maybe the ISPs would be more forthcoming and willing to forward any "allegations" (of course they wouldn't have to terminate accounts based on allegations, merely pass along the message).
"My guess is that you are a clueless freetard, running two copies of BT at the same time and seeding your favorite gay twink porn as fast as you can to get social standing points in your forum of choice, all the while expecting to get paid for sending people to your file locker site of choice.
Tard."
No, I'm actually a rather informed consumer/customer (no clueless freetard here, although one can't say the same for you... as far as clueless goes at least). And I am indeed running a copy of utorrent, but it's because I'm downloading/seeding a few Cyanogenmod nightlies (you know, ROMs for various Android phones compiled and customized based on source code freely released by Google), which is perfectly legal. In fact, I only use utorrent to download/seed freely distributed non-copyright infringing files. Because torrent technology is perfectly legal, as you probably don't realize/know due to your own biased beliefs. Also, I'm not a forum person, unless you count the xda-developer forums of which I'm a member and contributor (I help the noobs because I was one too at one point). Nor do I use file lockers, unless you count Mediafire where I store various documents I regularly need access to from various locations (work related documents) or Dropbox where I store copies of ROMs and my app/data backups for easy access to on the go whenever I decide to flash a new one randomly or have problems and I'm not in front of my personal laptop to fix/utilize. Also, I'm straight, so if I did download/seed porn it would be of the straight variety, but I have a girlfriend. So I'm kind of not in need of porn, she's more than enough to meet my needs.
I bet we can't say the same about you. I bet you're the same AC who's got a major crush on Marcus and always brings him up in every article. Me think thou hast repressed homosexual tendencies/urges. It's okay, nothing wrong with that. We won't judge you.
Also, please don't try insulting me again. You suck at it. You're out of your league and I'm not even going to try to return the insults (too much), it'd be like picking on a 5 year old. I mean I could do it, but it's just not fair.
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You can dish it out, but you can't take it.
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Cogent argument that. :-P News for you: some of us advocate boycotting all that crap and refusing to bother consuming anything from IP maximalists. We want them to go out of business, not give us free stuff.
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Suck it up.
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What is it with you maximist trolls and homosexuality? Marcus makes a post - he's having sexual relations with Mike! Court makes a decision you don't agree with - if you agree with it you must be sharing gay porn!
I find that the new anonymous poster alleging homosexual relations amongst West Hollywood lawyers may be onto something here. Gay or not, there's definitely some obsession with the topic here.
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Personally, I love the way you attack him for taking more than 5 seconds to post a story on his opinion blog on the thing YOU want to talk about. God forbid you should use the resources available to notify him or wait a few hours for him to write his post.
Besides, why could it be taking longer for him to post on a story from Germany than one in Australia? Could it be timezones or the fact that his posts take longer to write than your kneejerk attacks? No, it's a conspiracy!!!
"The Australian court ruling is lacking, because it fails to explain how to deal with this sort of situation in a way that is meaningful for everyone."
It's not the court's job to tell you how to conduct business. It's the court's job to assess the legality and liability of the claims put toward it. Your "side" lost and were told their claims were not correct and that the defendant should be compensated. That's all they need to do.
People are telling you how to proceed, repeatedly, you just have to listen to them. It's not the court's remit to force you to do so, sadly, despite the fact you refuse to do so.
"My guess is Aussie laws will be changed to address this problem."
My guess is you'll still be whining about the same things in 10 years when said laws utterly fail to change anything - or, more likely, make things much worse.
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What ideas have the content industry come up with for stopping piracy? Make the ISP's figure it out!? ISP's are not cops or judges...funny, neither is the content industry? Therefore, their accusations of infringement cannot be taken to have any legal standing and iiNet treated them properly. Great, common sense ruling! Sorry for your butthurt.
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Really I'd love to know since I have read the ruling, been following the case very closely for last 4 and a bit years and even know most of the actors on both sides.
Though interestingly your "throwing up your arms and saying there is nothing to do" comment is exactly why Roadshow (AFACT) Lost all the court cases all the way through since they were stating "we can't do anything about our business so we want others to do it for us.. *throw up arms and dummy spit*"
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Why is it the court's job to do that? Maybe things work differently in Australia, but here in the US it's not. Sure, sometimes the courts will offer such guidance, but it's certainly not a requirement.
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Even guidance when given, rarely now in Higher Courts is only obiter.
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Second, you've misunderstood the ruling. It doesn't say there is nothing to do. There's plenty that can be done, attacking the ISP just isn't one of the things and rightly so.
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and as per usual, everyone suffers. if GEMA think they will be exempt, they are stupid. if there is less stuff uploaded, there is less listened to, which leads to less sold, less royalties to artists (not that GEMA gives a toss about them) but also less to GEMA themselves. good win guys!
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Tunnel Content
thats how they think! a lot of people say well they are evil but they know what they are doing. honestly, i can't believe that, they are very stupid.
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Boycott!! At the risk of repeating myself:
It should be clear from this and many, many other current prosecutions and persecutions that no less than the top levels of the us government (you know, the county with all the bombs) have been corrupted by mafiaa evil. They are at war with the public.
Would the corrupt us regime of the minute even be doing this if an election wasn't coming this year for which they need millions upon millions just to 'advertise' their lies? (Do some reading - us elections cost billions and are huge business in the land of "free(to be)dumb" and the once-mighty dollar.)
Game over.
Mafiaa members and their supporters and the politicians that they own have had their chances for 20 years. They are incorrigible and must be disposed of.
It is time to put this all to and end, period.
Boycott all mafiaa members and all of their supporters and the politicians that they own. Promote the boycott at every twist and turn to anyone who will listen.
Boycotting is perfectly legal, moral and ethical.
The only way to stop evil as a movement is to starve it to death.
Without money, the sub-humans promoting this evil would dwindle and die.
And MODERN life would prosper.
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Re: Boycott!! At the risk of repeating myself:
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Re: Boycott!! At the risk of repeating myself:
MAFIAA Will never get into my Wallet as I have "CENSORED" them from my Money.
I wait and buy stuff Used.I never Buy New MAFIAA or go to a Theater or give them any way to get income from me.
I will buy INDIE NON-MAFIAA Stuff with no probs at all.
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Can we drive a
Basically, the type of law practice seems to be separated from reality, creates a good amount of units of "billable hours". Because suing an entire generation means that they like building an entire industry, in their little area, based on playing with other people's junk, which few people like, which is typical of the area known as West Hollywood.
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$9 Million (plus their own legal costs) down the drain
Proof:
1. Netflix is on the internet
2. Internet == Piracy
3. Netflix == pirates
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Can we get a consensus on this one?
Basically, the type of law practice seems to be separated from reality, creates a good amount of units of "billable hours". Because suing an entire generation means that they like building an entire industry, in their little area, based on playing with other people's junk, and not adopting technology.
Also, there's very little planning or consensus driven with constituents across the country that happens in WeHo beyond that which includes messing with other people's music, movies, and TV shows.
Just because your in West Hollywood, doesn't mean you or your company is correct, but it just means that there's a stong possibility that your gay.
If your a lawyer who is gay, head to West Hollywood where you can write legislation and dumb laws like this.
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Having lived in Vancouver's West End for a number of years I do know a few gay lawyers who find the whole IP maximalist thing ridiculous. I'm straight, incidentally.
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Re: Can we get a consensus on this one?
Having lived in Vancouver's West End for a number of years I do know a few gay lawyers who find the whole IP maximalist thing ridiculous. I'm straight, incidentally.
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I'm fairly certain I'd rather get advice from, and even talk to, a 'gay' lawyer rather than yourself!
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The judges ruling is unanimous and, better, there is no minority opinion from any of the justices. Even better is the costs award which judges often use to express their opinion of the validity of the lawsuit to start with and whether or not they consider the time and costs to have been "wasted".
In my mind even better is that the judges acknowledge that bittorrent is a protocol that is an inherent part of the Internet not a peer-to-peer network and not inherently blockable by an ISP as it's built in. AND the futility of it all by pointing out the futility of it all by the alleged infringer switching ISPs. (Bittorrent is described as a swarm by it's developers which more accurately describes how it functions.)
As others have pointed out no copyright act is capable of "protecting content" once it hits the Web or Net. Once it's there it's there.
iiNet has the right idea here though it's doubtful the *AA's will get that now or, perhaps, ever. They haven't so far.
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Anglosaxon copyright
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Re: Anglosaxon copyright
In fact the 'Continental' version of copyright as you name it is actually becoming a thorn in the side of Statute of Anne based countries (common law countries actually).
You might want to browse through the 1709 Blog [ http://the1709blog.blogspot.com ] a bit dry though always interesting and unbiased, before you comment about WIPO and Berne etc.
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http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf
The full judgement of Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16 can be found here:
can be found http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
The only thing that I didn't like about the judgement is that "safe harbours' have still not been fully addressed within Australia since the court found it was unnecessary to address it [at 148].
Though Roadshow (really AFACT) have to fully pay costs.. Oops! [$12mill is one estimate]
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Score
Good guys(aka BT users and ISP companies that advocates Internet Freedom from copyright): 1
IP Maximalist Troll retards who deserve to die: 0
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