And Of Course: AFACT Appeals iiNet Ruling

from the the-fight-goes-on dept

This isn't a huge surprise, but down in Australia, AFACT, a group representing the major movie studios, which had already fought having to pay iiNet's legal fees after getting trounced in court, is appealing the ruling itself. You had to figure this would happen. The studios weren't going to go down without a fight. The main part of the appeal is AFACT claiming that iiNet somehow authorized copyright infringement by not stopping infringement:

"The court found large scale copyright infringements, that iiNet knew they were occurring, that iiNet had the contractual and technical capacity to stop them and iiNet did nothing about them."

But that actually ignores both reality and what the ruling said. What it found was that, indeed, large scale infringement was occurring, but that it was impossible for iiNet to be an effective copyright cop since copyright infringement was something for the court to decide, not for some ISP to just guess. Either way, this case won't be over for quite some time...

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

Australian ISP Stops Kicking People Off The Internet Following iiNet Ruling

from the evidence-needed dept

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...

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

Copyright Industry Responds To iiNet Ruling By Asking For Gov't Bailout; Aussie Gov't 'Studying' It

from the expected,-but-not-cool dept

So, the Australian court ruling in favor of iiNet was quite brilliant, not just in getting the technology and the law (and common sense) right, but also in explaining why it wouldn't make much sense to change the law either. But, of course, that's not the way the big industries that rely on copyright as crutch operate. If they don't get their way, they go crying to the gov't to have their business models propped up and thrust into the law. So, of course, the "anti-piracy" (i.e., the "we can't adapt so let's drag the whole world backwards") group AFACT has already jumped out and demanded that the Australian government change the law in response to the ruling. And, of course, the Australian government says it's "examining" the issue.

Of course, this just shows how far gone AFACT and its members (Hollywood studios mainly) are out of touch with what this ruling is saying. The ruling points out, quite clearly, that the problem isn't with the law and it's not with the technology. Changing the law doesn't fix things. The problem is with how the big movie studios have failed to adapt, and are now blaming totally blameless parties for their own failures. The proper response is: "Okay, it's time to come up with better business models." It's not to ask the government to artificially blame a third party that had nothing to do with the infringement. It's really a rather stunning statement of incompetence that any industry thinks the cure to their own business model failures is to legally make an innocent third party responsible.

Filed Under: australia, copyright, government, isps, secondary liability, studios, three strikes
Companies: afact, iinet

Decision In iiNet Case Explains Why ISPs Cannot Effectively Be Copyright Cops

from the fantastic-ruling dept

We already covered the basics of the Australian court ruling in favor of iiNet yesterday, but if you read the full ruling you begin to realize what a well reasoned argument the judge made, and hopefully it can become the basis of future rulings on this particular topic. The judge clearly took the time to understand the actual issues, and understand how BitTorrent works, how the internet functions, and making sure that he didn't cut corners and assume that things in the digital world were exactly analogous to the physical world. It's one of the more clueful rulings you'll read. Michael Geist has highlighted a few sections that do such a great job of explaining why ISPs should never be copyright cops. It's an argument that we've tried to make in the past, but which the judge does quite eloquently. Basically, he notes that determining whether or not something is infringing is not easy, and requires a sophisticated court, not the random claims of a right holder or the suspicions of some third party:

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.

Furthermore, the court found that it's troubling to have ISPs cutting off users based on accusations, without a court weighing in on the actual details:

One need only consider the lengthy, complex and necessary deliberations of the Court upon the question of primary infringement to appreciate that the nature of copyright infringements within the BitTorrent system, and the concept of 'repeat infringer', are not self-evident. It is highly problematic to conclude that such issues ought to be decided by a party, such as the respondent, rather than a court. Copyright infringement is not a simple issue. Such problems as identified are not insurmountable, but they do weigh against a finding that the respondent could conclusively decide that infringement had occurred and that it had the relevant power to prevent by warning, suspension or termination of subscriber accounts, even if it had the technical capability to do so.

These arguments are important, though often brushed aside as meaningless by supporters of turning ISPs into copyright cops or expanding the concept of contributory or secondary liability for copyright. They claim "but of course people know what's infringing," when the truth is it's not that easy. A third party has little way of knowing whether or not content was released on purpose, or if it's use is fair use. Those sorts of things require a sophisticated legal analysis, done in a court -- not by the copyright holder with a demand that the ISP take action. It's great that this court recognized this issue clearly, and hopefully others will start to follow suit.

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

iiNet Wins! AFACT Has To Pay. Australian Court Says ISPs Not Responsible For Infringing Users

from the good-news dept

Another victory for common sense. Down in Australia, we've covered the lawsuit filed by movie studios against popular ISP iiNet. The studios were upset that iiNet wasn't doing enough to stop unauthorized access to movies by its users. iiNet took a very strong pro-consumer stand, and pointed out that it had no reason to act as the movie studio's personal police force:

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 company claimed further that based on Australian law, its customers actually weren't violating copyright law in trading files directly, since the law only covered distributing content "publicly" and a one-to-one trade is not "public." Furthermore, it argued that the studios' demand that it monitor its customers activities would violate Australia's telecom act and violate users' privacy rights.

Not surprisingly, a lot of folks have been waiting for the verdict and it's in! The court has ruled in favor of iiNet, saying that just because it provides access, it does not mean it is a party to infringement. Not only that, the court has told AFACT, the Australian anti-piracy organization that handled the case, that it needs to pay iiNet's legal fees. The ruling looks fantastic. Some snippets from the ITnews article linked above:

"I find that iiNet simply can't be seen as approving infringement," said Justice Cowdroy.

Justice Cowdroy found iiNet users had infringed copyright by downloading films on BitTorrent, but he found that the number of infringers was far less than alleged by AFACT.

More importantly, Justice Cowdroy said that the "mere provision of access to internet is not the means to infringement".

"Copyright infringement occured as result of use of BitTorrent, not the Internet," he said. "iiNet has no control over BitTorrent system and not responsible for BitTorrent system."

The fact worldwide piracy was rife "does not necessitate or compel a finding of authorisation, just because it is felt there is something that must be done", he said.

This is a huge victory for those who believe that the efforts by copyright holders to push secondary liability on ISPs is a very dangerous policy. It's great to see the court get this one right.

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

Movie Studios Pissed Off At Netflix, Don't Want To Allow More Streaming Movies

from the this-will-not-end-well dept

Honestly, at what point do entertainment execs finally figure out that by purposely not making content available in the format people want it in, they're only encouraging them to get that content through unauthorized means? We already knew that the big movie studios were annoyed with Netflix and trying to get Netflix to delay movie rentals until at least a month after the DVD comes out. Now we have an explanation why. As JJ was the first (of a few) to send in, the studios apparently are quite annoyed that, in order to jumpstart its movie streaming offering, Netflix routed around the movie studios, and signed a deal with Starz that allowed it to stream the same movies without a direct deal with the studios. It's not clear how or why Starz had the right to also stream movies through Netflix, but I'm guessing it was a loophole in Starz' deals with the studios -- a loophole that's now closed. So, Netflix is saying it needs to convince Hollywood it's not the enemy, but Hollywood isn't quite buying it yet.

This really shouldn't be a huge surprise. After all, this is Hollywood, where reports that actually show that the movie industry will grow quite a bit in the next decade are also used to claim that rental services like Redbox and Netflix are killing off jobs. It's also the world where Hollywood execs still think that the answer to their problems (problems like its best box office year ever) is to just add more release windows. It's as if they still think that keeping content away from people makes them more likely to buy.

Filed Under: dvds, hollywood, movies, studios
Companies: netflix

Hollywood Faces A Swarm Of New Competitors

from the video-startups dept

A lot of people seemed to be interpreting my post about the writer's strike a couple of weeks ago as taking the studios' side. That wasn't really my point. I don't know enough about the details of writers' compensations structures to have any opinion about which side is being more unreasonable in the dispute. Rather, my point was that a protracted strike is going to hurt everyone in Hollywood—studios and writers alike. There's a very real risk that a protracted strike will create an opening for outsiders to attract viewers who would otherwise be watching Hollywood fare, and that at the end of the strike a lot of those viewers might never come back. That would hurt the studios the most, obviously, but it wouldn't be good for the writers either.

Two recent stories illustrate the sort of threats Hollywood is facing. First, the New York Times profiles some of the many online video startups that have sprung up in the last couple of years. These sites develop a variety of different types of content and are built on a variety of different business models. Some are producing "webisodes": scripted, episodic video programs. Others are creating low-budget comedy clips to spread virally. For example, this silly clip of Will Farrell arguing with a 2-year-old has apparently racked up nearly 50 million views. At the opposite extreme, TechCrunch reports on Blowtorch, which has raised $50 million in venture capital to launch a new low-budget movie studio. The company plans to produce movies for about $5 million each, and has lined up 600 theaters near college campuses to show their movies. They're planning to solicit short films on their websites, and show the best short films on the big screen before their movies. It is, as TechCrunch puts it, "a movie company that is thinking like a cable channel": providing users with content whenever and whereever they want it, instead of trying to force users to watch content on the studio's schedule.

Now, it should be emphasized that it's far from certain that any given company will succeed. A lot of the content on these sites isn't that great. But with so many companies trying so many different approaches, it seems likely that some of them will create some hits. And if the flow of new content from Hollywood dries up, that's obviously going to create a huge opening for these sites. And once one of these companies creates a loyal following, Hollywood is going to find it awfully difficult to lure them back.

Filed Under: content, hollywood, movies, studios, writers' strike
Companies: blowtorch