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

from the another-big-win dept

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.

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

Two Years After The RIAA Suggested ISPs Were Ready To Implement 3 Strikes, Most ISPs Have No Such Plans

from the lies-the-riaa-tells dept

It's been a little over two years since the RIAA dropped its strategy of suing music fans for sharing files online -- a strategy that was an unequivocal disaster for the record labels. Of course, when the news came out, the RIAA suggested that the reason they had done so was because of a backroom deal with various ISPs to implement three strikes plans. And yet, here we are, two years later with no major ISP having put in place such a policy. Greg Sandoval has been following this story closely, and his contacts at most of the major ISPs indicate no interest in putting in place such policies, and a widespread recognition that the ISPs have enough lobbying clout to push back on the RIAA if necessary.

There have been some smaller ISPs who do seem to be using a modified three strikes policy, but without the major players, it's really not that widespread. Of course, it's notable that Sandoval says his sources expect Comcast to put in place a three strikes plan once its merger with NBC Universal is done, and suddenly it decides that protecting obsolete business practices is more important than kicking off your own customers. Either way, this is notable in seeing one place where the RIAA may have actually met its match. Two years ago, the group acted as if three strikes was inevitable. Even in Sandoval's latest article, he notes:

Executives from entertainment companies brush all the bad news aside. They say the same thing they've said for two years: Just wait. They say there's a big announcement from some of the major ISPs coming around the corner.

But they've been suggesting that for two years now, and at some point you have to question if there's anything to back that up. Perhaps the RIAA is just so used to getting its way that it doesn't know how to react when it runs into an even stronger lobbying organization.

Filed Under: isps, three strikes
Companies: comcast, riaa

End Result Of HADOPI? Higher ISP Fees

from the but-is-anyone-buying-more? dept

It's not like people didn't warn everyone what would happen with various three strikes laws. The costs for ISPs were widely discussed, even if the recording industry lobbyists insisted they were overblown. Yet, here we are, a few months into France's HADOPI implementation of three strikes, and French ISPs are already warning users that they need to jack up fees to pay for compliance with HADOPI. And, of course, no one has provided any evidence that kicking people off the internet for file sharing makes anyone any more likely to buy. So, now, not only are people less inclined to buy just in general, but they have less money, because they have to pay more to their ISP. How's that going to save the recording industry's old business again?

Filed Under: copyright, fees, france, hadopi, isps

Myth Debunking: ISPs Are Profiting From 'Piracy'

from the uh,-no dept

One of the popular claims from entertainment industry supporters, who somehow want ISPs to be liable for file sharing, is that "ISPs profit from file sharing." We hear this over and over again. But there's little evidence that's true. It's not like most internet users wouldn't have internet access if they couldn't file share (that's another myth, where the industry overvalues its own content, without realizing there are other reasons to have an internet connection). However, even more evidence can be found in the fact that various ISPs continue to work so hard to throttle file sharing traffic because it actually costs them a lot in terms of bandwidth. The ISPs already have some incentives to minimize traffic hogging (even if their methods are crude and lame right now).

Filed Under: bandwidth, broadband, isps, piracy, profits, third parties
Companies: rogers

US IP Czar Gets Companies To Cut Off Unlicensed Online Pharmacies

from the borderline... dept

Earlier this year, we noted that the US IP Czar, Victoria Espinel, had been making the rounds to ISPs, registrars, payment processors and others to get them to agree to voluntarily start shutting off certain "infringing" sites. Now we see the results of those talks. Espinel has announced that a variety of companies -- including Google, Visa, Mastercard, Paypal and Network Solutions -- have apparently agreed to effectively disappear and cut off certain websites. The focus, for now, is on "unlicensed web pharmacies," with the idea being that these companies will effectively kill off those sites:

Together, the firms hope to tackle every link in the chain that keeps unlicensed pharmacies operating by stopping them showing up in search results, taking their websites offline, delisting the domains they use and stopping payments reaching them.

Think COICA without COICA -- but just with government pressure on companies. Seeing Visa, Mastercard and Paypal on the list certainly isn't surprising, after those three already did the same thing in cutting off Wikileaks. However, it's a bit surprising to see Google agree to this (Update: Google says that it's only agreed to cut off advertising that violates its policies). If there's a trial and these sites are found guilty of violating the law, then I can see cutting them off -- but once again, it appears that this is the government trying to kill off websites, without a trial.

And, yes, it's for "unlicensed web pharmacies," and everyone plays up the spam and the fake (potentially dangerous) drugs. Those are a serious problem. But they also lump in the (quite common) grey market pharmacies as well -- which often allow people to get drugs from outside the country at much more affordable rates. Shutting down fake drug sellers is fine. Shutting down the grey market drug sellers is a bit of a bigger issue.

On top of that, given the recent ICE domain seizures and the whole COICA law -- both of which Espinel has spoken out in favor of -- it's not hard to see how the mandate behind this particular program is quite likely to grow well beyond "unauthorized web pharmacies" to other sites as well. In fact, MasterCard has apparently already agreed to cut off websites deemed "pirate" sites.

Filed Under: copyright, cut off, ip czar, isps, payment, pharmacies, victoria espinel
Companies: google, mastercard, network solutions, paypal, visa

US ISP Suddenlink Claims The DMCA Requires They Disconnect Users

from the more-like-Sudden-UN-link dept

TorrentFreak has the news that US cable ISP Suddenlink has implemented its own form of a three strikes policy, and defends it by falsely claiming the DMCA requires it. Torrentfreak has the transcript of a discussion between a customer who has been cut off and a Suddenlink rep blaming the DMCA:

Customer: I want to reconnect my internet service. They said I got 3 DMCA letters and they said that by law I had to be disconnected. Is that true?

Suddenlink rep: Yes, your internet was disconnected due to DMCA. When the internet is disconnected due to DMCA, it can not be reconnected for a minimum of 6 months.

Customer: The DMCA makes that requirement?

Suddenlink rep: Yes.

Customer: So you're stating, for the record, that by law, the DMCA law, that you have to disconnect users for receiving 3 DMCA letters?

Suddenlink rep: You have no choice in the matter.

Suddenlink rep: It is the DMCA policy that it can not be reconnected for 6 months.

Suddenlink rep: It may be the DMCA policy or it may be the way we go about following the DMCA guidelines.

Customer: The law states that?

Suddenlink rep: Once the 3rd offense occurs, it can not be reconnected for 6 months.

Suddenlink Rep: The information I have on the DMCA states: This law was enacted in 1998 to protect against illegal downloading of copyrighted material like movies, music, etc. As an Internet Service Provider (ISP), Suddenlink , and other ISPs, must implement a policy of terminating internet service of customers who repeatedly share copyrighted files.

This is, of course, not true. The DMCA has no requirement that ISPs disconnect people after three accusations (not convictions) -- and it especially doesn't say that ISPs don't need to offer a refund when they do this. For all the fighting by the record labels trying to get a three strikes policy into law and complaining about the DMCA, perhaps it makes them happy to know that some ISPs are simply pretending the DMCA is a three strikes policy.

Of course, customers may think otherwise, and may prefer to find an ISP that actually believes in due process and actually supports its users against unsubstantiated accusations of file sharing.

Filed Under: copyright, disconnect, dmca, isps, three strikes
Companies: suddenlink

Hadopi Begins Issuing Tens Of Thousands Of 'Notices' For Infringement In France

from the begin-the-takedowns dept

Almost a year after the law officially went into effect, the French Hadopi organization, which is responsible for managing the "three strikes" process to kick file sharers offline after three accusations (not convictions) of unauthorized file sharing, has started sending out notices. Initially, it's sending out approximately 10,000 per day, with plans to ramp up to 50,000 per day. Already overburdened ISPs will be responsible for handing over the info on those accused within eight days, or they could get fined 1,500 euros per day per IP address. That could add up quickly. Some ISPs have threatened to ignore or fight the demands for info, but it's unclear if any ISP is willing to stand up to that kind of liability...

Filed Under: france, hadopi, isps

Why Must ISPs Pay To Be The Mandatory Copyright Cops Of The Entertainment Industry?

from the that-doesn't-seem-right dept

A bunch of folks have been submitting various versions of the story of how the UK government appears to have -- somewhat arbitrarily -- decided that copyright holders should pay 75% of the costs of tracking down those accused of file sharing, while ISPs should pay the remaining 25%. It's all meaningless, of course. The reality is that consumers will pay either way, via higher prices, which will then be used to kick them off the internet. How nice. Of course, even more ridiculous is that the recording industry is still complaining, saying that ISPs should have to pay even more. This is the entitlement mentality of the industry at work. They want everyone else to pay for everything. The artists "pay" via the recouping process. Radio stations need to "pay" to promote their songs. And, now, ISPs should have to "pay" for mandatory efforts to act as the record labels' copyright cops. The sense of entitlement from the industry is staggering. Along those lines, what's up with UK communications minister Ed Vaizey, as part of announcing these plans, making the blatantly false claim about "our valuable creative industries, which have already suffered significant losses as a result of people sharing digital content without paying for it." After all, as the music industry's own research shows, the industry has been growing. It seems blatantly and intellectually dishonest for Vaizey to claim otherwise.

Filed Under: digital economy act, isps, uk

UK ISP Hits Back At U2's Manager For Claiming That ISPs Profit From File Sharing

from the will-we-get-a-response? dept

One of the more ridiculous claims, made by the music industry lately, is this idea that ISPs are somehow unfairly "profiting" from file sharing, and that's the reason why they should be forced to act as the entertainment industry's police. The argument makes no sense, but has become quite popular in certain circles. It was one of the many fallacious arguments made recently by U2's manager Paul McGuinness in his quite silly screed blaming everyone but the recording industry for the industry's problems. Thankfully, though, some people are speaking up. Both ZeroPaid and TorrentFreak point us to a blog post from ISP Entanet's head of marketing, pointing out that this claim is not at all accurate:

Considering Mr. McGuinness proudly informs us he has been debating on this issue for two years, he seems to totally misunderstand the reasons behind broadband customers' demand for better broadband speeds and equally doesn't understand the current facilities available on the Internet. He asks "Do people want more bandwidth to speed up their e-mails or to download music and films as rapidly as possible?" Well, if he took the time to make an informed comment through proper research he'd see that, in reality, most broadband customers want to be better able to take advantage of 'legal' technologies such as online gaming, YouTube, iPlayer, iTunes, VoIP and a vast array of business oriented services that are currently available. It is simply naive to suggest that customers' desire for faster broadband and more bandwidth is driven solely by a desire to cheat music rights holders out of their royalties through illegal file sharing. Furthermore, without legal services such as iTunes music sales would undeniably decrease. Does Mr. McGuinness want to close down this a distribution model that has proven to contribute positively to music sales? Talk about cutting your nose off to spite your face!

It's great to see people who actually understand this stuff debunking McGuinness' argument, though somehow I don't see McGuinness ever responding reasonably to this point.

Realistically speaking, this is yet another example of the industry's proclivity to overvalue the content and assume that any of the services or tools around the content are valueless. Similarly, it shows a very broadcast top-down view, assuming that the only reason people are using the internet is to download their content, rather than to communicate with one another. The internet is a communication platform much more than a broadcast medium, and the music industry still doesn't seem to grasp that simple fact.

Filed Under: broadband, file sharing, isps, paul mcguinness
Companies: entanet

French ISPs Pushing Back Against Hadopi; Threaten To Ignore Requests

from the like-you-didn't-see-this-coming dept

This should hardly come as a surprise, but as the French "three strikes" agency Hadopi tries to push forward, it's facing some serious resistance from French ISPs, who might out-and-out ignore the law's requirements in a boycott against the plan. The main issue, of course, is that they feel that the law puts too big an expense on them, without adequate compensation for the work. Basically, the government is asking them to be under-paid police for the entertainment industry. The ISPs are asking for greater compensation to play that role, and if they don't get it, are apparently willing to fight the overall law in court. It seems that, after years of fighting to get the law passed, the French government still might not be over the final hurdle to kicking people off the internet for file sharing.

Filed Under: france, hadopi, isps