AFACT v iiNet: A summary of Justice Cowdroy's decision
- 04 February, 2010 10:46
- Comments (9)
A summary of the statement provided to journalists on Justice Cowdroy's reasons for finding in iiNet's favour:
"The decision in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the means for infringement but, unlike those decisions, I find the mere provision of access to the Internet is not the means of infringement. There does not appear to be any way to infringe the applicant's copyright from the mere use of the internet. Rather, the means by which the applicant's copying is infringed is in iiNet users' use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system."
"Secondly, I find that as a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to section 101 (1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to section 101 (1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.
"Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.
"Consequently, I find that the applications AMENDED APPLICATION before me must fail."
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Comments
Tim VIm
If you enjoy this outcome and wish to prevent the moronity expected from the government (new laws to combat your freedom), then please support the Pirate Party of Australia who are fighting for freedom of speech and freedom of the internet.
Blake
If you have a representative in my area, I will vote for you.
Me
Oh btw you dont need bit torrent to download movies..
S
Finally, some sanity prevails. Now, how to get rid of Michael Atkinson....
Happy Internet User
YAAAAAAY!!!!!!!!!!
I hate how the government and big corporations try to censor and dominate the free will of society. Had this case been won I would have been furious, as if was ridiculous and completely unfounded. It gives you a little more faith in the court system.
Richard Gordon
What a cop out!
So the internet provider provides the means that enables an illegal act to be perpetrated but unlike the gun shop owner who sells a product and then has no control over its use, an ISP can control access to sites that are blatantly facilitating crimminal behaviour!
Next time any off you folks on the ISP cheer squad put your heart and soul into creating something that you want to make your livelihood out of and your creation gets dumped on the net for all and sundry to access for nothing, don't come weeping and wailing to the courts...just suck it up and kiss all your work. hopes and dreams goodbye and especially don't ask the poor ISP to block the site and prevent the crime...you'll be restricting someone elses freedom to steal...shame, shame , shame!
S
Richard, you're missing the point entirely. Kinda like the entire music and film industry missed the last decade really.
As Justice has put it, it is not iinet's job to police what ppl do with their internet, nor cut off their connection, simply bc AFACT says someone may be doing something illegal, with or without proof.
And, as iinet also rightly point out, this doesnt make copyright infringement legal either.
So take your moaning elsewhere.
winter
para 171 of the ruling states:
As an aside, the Court notes that AFACT, the organisation which the applicants use to aid in enforcement of their copyright, itself blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright Theft.
so it isn't theft after all, but copyright infringement
Para 166:
the exact relationship between AFACT and the actual copyright owners (the applicants) is, at best, unclear.
para 190
the Court does not accept that bandwidth or quota usage can be equated to infringing activity.
Matthew Munro
@Richard Gordon
Please refer to the ENEX trial for internet filtering which stated that all tested systems can be bypassed.
Filtering can always be bypassed because you would need to be able to intercept encrypted packets to successfully filter, the same type of encryption used during your online banking session.
Breaking SSL is not feasible or acceptable, therefor you can not control what sites people go to. Also recommended reading http://en.wikipedia.org/wiki/Tor_(anonymity_network) which is yet another way to defeat filtering systems. There is also a prototype bittorrent like protocol that combines the swarm capibilites of bittorrent with the anonymity of TOR.
Filtering the internet is a lost cause except at the end point, aka your computer.
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