AFACT: iiNet stops spam, why not The Pirate Bay?

Copyright enforcer argues ISP executive had slack policy "in his head"

The copyright enforcement arm of a string of film studios has told a Federal Court hearing today that Internet service provider iiNet had authorised customers to download illegal movies partly by not “stopping” the infringements.

Australian Federation Against Copyright Theft (AFACT) legal representative, David Catterns, told a panel of three Federal Court judges that iiNet failed to take steps to prevent copyright infringement, despite having an “analogous” scheme in place to combat spam.

“There are a number of steps short of terminating an account that [iiNet] could have done including warnings. iiNet has a graduated response to spam... we proved there were other reasonable steps in place,” Catterns said in the Federal Court of Australia today.

“[iiNet] clearly had the right to control what happened here... the nature of relationship, a broad idea, includes a contractual [technical] relationship between ISP and person who has the account.

“This is a significant case because it relates to Internet and uses and balance of rights and responsibilities between ISPs and customers.”

In February, AFACT launched an appeal after the judge overseeing its much-publicised copyright case with iiNet, Justice Cowdroy, dismissed the case, following a five-month investigation that uncovered instances of copyright infringements by users of iiNet’s services.

Catterns said the case of University of NSW v Moorhouse (1975) has become a “very significant tool whereby copyright owners can achieve a measure of control and protection of rights”.

He pointed to a “fundamental error” in Justice Dennis Cowdroy's ruling that AFACT had “sued the wrong person” adding it is “not desirable to sue individuals time after time”.

The Motion Picture Association of America, and recently the fledgling US Copyright Group became infamous for instigating multiple civil law suits against thousand of alleged copyright infringers. Wired reported the latter group is suing some 15,000 users for allegedly downloading copyright-protected movies.

Catterns attacked iiNet's policy of terminating accounts based on customer admission or court orders that point to copyright infringement, and said its effectiveness is "in (CEO) Michael Malone's head".

“That is not a policy , not communicated, adopted or reasonably implemented properly,” he said.

He explained to the court the machinations of bittorrent and referenced the infamous web site the Pirate Bay and the uTorrent client.

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More about: ACT, iiNet, Motion, Motion Picture Association of America, University of NSW
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Comments

Phil

1

They filter spam, so they should also stop torrents… what planet is this guy on? You think a legal brain would grasp the difference between solicited and unsolicited, and realise he's making a ridiculous comparison.

ubetido

2

Perhaps instead of bothering with small fry like iiNet they should tackle Telstra, since they clearly see nothing wrong with sites like TPB, where they still run their Bigpond Ads.

Alex

3

@Phil, I would imagine they're referring to spam originating from an iiNet user's account, not spam being received by that user.

AFACT is saying that iiNet has a defined and responsive policy against users who break the anti-spam clause in iiNet's agreement and that therefore iiNet has the capacity to enforce the anti-piracy clause also.

Fair enough I think.

Rahul

4

Not everyone using utorrent or piratebay is downloading copyrighted data.

drawingalongbow

5

@Alex,
why does having an anti spam policy obligate an ISP to have a download content monitoring policy when the law does not require it?

Bernard

6

iiNet is the worst ISP I've ever heard of anyway, who cares if they do the right thing, wrong thing, get shut down?

On another note, we should be able to download anything that's on the internet. If it's something that we've obtained illegally then we should get punished for it, not the ISP. Their objective is to give us access to the internet, not control what we do with it... surely.

Andrew

7

Come on AFACT let's sue the internet for allowing copyright infringement

Roscoe

8

So, iiNet has exercised defacto "permission" for copyright material to be downloaded by not stopping it occurring ? What a load of cobblers !!
Bernard .............. iiNet's been my ISP for over 10 years and they are, without doubt, IMHO the best ISP I've ever had, bar none.

gnome

9


Usual brilliant attack from AFART. They must be paying their lawyer mobs gadzillions. Are they just trying to send iiNet broke for some reason?

So what's next? Charge a service station because they sold fuel that was used in a getaway car from a bank robbery?

That would seem to make about as much sense.

Uncle Pete

10

I second that Roscoe

I have been with iinet from very early on, and I for one cannot speak highly enough of them.
Just gone naked ADSL with them.

Zag

11

I wonder what they'll tell the Australian Government what to do.

if the NBN Co gets the go ahead.

Just think US movie studios saying this user needs to be wiped from the NBN and that would have to happen if they won this.

Peter

12

Its not an ISPs job to police overseas content. Never has been, never will. The Pirate Bay does not just have torrents pointing to illegal content but all kinds and it doesnt host anything illegal itself. So a wee bit of fibbing here.
It seems stupid for a group like AFACT to pick fights with those who are the only hope they have of blocking what they want blocked. Taking them to court and winding them up is a sure method to getting at the very most a halfassed, compeled by a court effort to takedown and even then I dont see any real impact. I think AFACT have failed on a massive scale to accomplish what they set out to do. Unless I have just misread what that is and infact they have set out to disrupt and annoy just about everyone under the sun with moves that make them look like a bunch of selfish incompetent gits. I will always root for iiNet as I cant stand evil corporate bullies.

Steven

13

So we should obviously sue AFACT, because they haven't stopped the trade in child pornography. They have analogous schemes in place to find and stop the trade in pirated movies, so they should of course be stopping child porn.

What's that? They say it's not AFACT's job to enforce the law.....so why are they asking the ISPs to do the copyright holders' jobs for them?

Oh, because they'd like to offload the cost of doing their job onto somebody else, or better still negotiate a cosy royalty scheme to get money for nothing.

Sonny

14

I hope someone from AFACT/RIAA/MPAA or whatever you might have come up with now reads this.
What have you given back to the people for all your billions of dollars of profit over the past decades. So why should people front up and pay for movies.
The usual tune is, 'Support the artists', when artists only get 50cents to a $1 out of $29.95 for a cd, then the retailer might get $5
So you get $24.45 profit from that? For a cd which costs less than 1cent to make? And an artist which cant sing, and a good producer to make it sound in tune.
Then you buy a CD and theres only one good song which they happen to be spamming on the Radio and TV constantly, so you have this useless CD which just cost $30.
The largest purchaser of CD is the record companies themselves, this is how they get teeny bopper artists to go triple platinum in the first week.
I would pay 5cents for a song gladly as long as i can put it in my car, my desk, my phone wherever i want.
This anti-piracy laws you schemed up are flailing and failing.

chugs

15

Record companies however need to be taught a lesson.

People stop buying CD's and DVDs. Rip and rip as much as you can. Sure if the artist has a pay direct system (self-published) then by all means buy direct but until Artists realise that the public refuse to accept the hegemony and corrupt rule of the publishers then nothing will change.

Regarding films I couldn't care less if Warner Brothers collapses. Humans will make films and productions until the end of time. Just because they can't charge $30 for a low resolution copy (and double that for a high resolution) won't change that fact.

I work and have family who work in all of the industries that I am proposing that we destroy - although my proposal might cause short term dislocation it will by no means end life on earth.

So no more whining, no more complaining, no more arguments. Its time for action. A good 6-12 months moratorium on the purchase of CDs and DVDs will destroy the media publishing industry. They won't have enough for a coffee let alone the people destroying army of darkness (lawyers)..

Released from servitude thousands of artists and production staff will flood the world with innovating back-yard produced media. Instead of crass pornography for the mind the suppressed artists within these trapped slaves will be freed.

saint

16

@ Bernard - im using iinet right now, ive no complaints. i dunno why youd say they are the worst, ive had worse.. you dont even say what you dont like about them.

onya iinet, keep up the good work

seagull4

17

I can list 5 companies ive been with over the last 10 years that are pure rubbish, iinet has been like a damned light in the darkness compared to AAPT,Telstra,Optus and there like, Telstra was by far the worst nightmare ive ever had with a company, and the main reason I went to iinet and VOIP, so I never have to ever even give line rental to those useless buggers at Telstra.

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