AFACT: Shape, prevent or playpen, but iiNet did nothing
- 02 August, 2010 13:08
- Comments 7
The Australian Federation Against Copyright Theft (AFACT) has told the Federal Court in an appeal hearing that iiNet should have shaped, blocked or play-penned subscribers who infringed copyright.
But iiNet lawyers told Computerworld Australia yesterday that claims the ISP had communicated actively with those who had infringed copyright could not be considered in the appeal hearings this week because they were not introduced into evidence during the first Federal Court bout.
AFACT legal representative, David Catterns, claimed iiNet encouraged subscriber RC-08, accused as a prolific movie pirate, to upgrade to a higher-capacity plan once the user had reached the download limit.
“[iiNet] did nothing. They had complete power to prevent, warn, or flag the account. They can shape, suspend, and playpen,” Catterns said at a hearing in the full bench of the Federal Court today.
The bigger plan, Catterns said, would let RC-08 “do more of the things he loves online". He said the alleged infringer was listed on AFACT's “favourite document”.
Catterns said iiNet replied to the details in a letter sent to the ISP, claiming the details were defective references and noted it "would campaign to protect its users, and passed the letters to police. Thanks for nothing,” adding that iiNet wrote it would not “take the position of judge and jury, vigilante”.
Catterns said iiNet knew RC-08 was downloading and sharing movies illegally with other BitTorrent users “week after week”, which made for a “more compelling case” of ISP responsibility than was proven in the case of University of NSW v Moorhouse (1975).
He said iiNet accused AFACT of vigilantism in its letters alleging copyright infringements by its subscribers.
Earlier in the day, Catterns, told the 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.
“[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.
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Comments
Cyber Trekker
Australia as a nation is getting worse. I would feel ashamed at being Australian, for this nation over the past few decades has become a nation of control, manipulation and extortion. Rather than being a democracy, it is a dictatorship where government and business reign at the expense of the citizens who are the very life-blood of the nation. Extremism and absolutism abides in the cold and calculating heart of Terra Australis in the person of government and business.
Meanwhile, despite the refutations of politicians and business-oriented individuals, Australia not only lacks a real democracy but veritably frolics in depriving its citizens of a decent life.
Next, I suppose, we'll be hearing of a walking the pavement tax or a fee from business for having the audacity to utilise another business.
Rather than copyright serving the primary purpose of protecting so-called intellectual property from being claimed as the creation of another in what would amount to theft by deceit, increasingly in the modern era it is used to control, manipulate and extort funds from the public's pocket to make the copyright owner exceedingly wealthy and the public as poor as a humble vagabond through specious reasoning.
Steven
@Cyber Trekker - whilst I am on your side of the argument and agree that ISPs , short of a direction from a court or similar authority, should not be made responsible for enforcing the wishes copyright holders, I would point out that the primary purpose of copyright is not to prevent the false claiming of creation (the moral right to claim authorship), but rather the granting of a monopoly on the rights to profit from a creative effort to the author, the imperative being to encourage the creative effort for the overall good of the greater community.
Where we've gone astray is in the extension of the copyright period to ridiculous lengths of time, at the behest of large commercial interests.
Where AFACT is going astray is in assuming it can now make other organisations responsible for doing its bidding in the absence of a lawful ruling. It wants to short-cut the time, effort and most importantly the cost of pursuing individual copyright offenders through the established legal process. Of course, their end-game is more likely to be to force the ISPs into a royalty agreement - effectively instituting a tax on Internet users regardless of whether they breach copyright or not.
CS
@ Cyber Trekker:
Get over yourself mate.
The world isn't out to get you. Downloading illegally copied movies and music is theft. Simple as that.
AFACT are a bunch of nasty, greedy freaks pursuing iiNET because iiNET is a large, sue-able company. iiNET haven't done anything wrong, but it is not financially viable for AFACT to go after the individuals who are stealing, so they're trying to make iiNET responsible.
When someone robs a video shop that is a crime. It isn't "depriving citizens of a decent life" as you state. However, the criminal is the person who steals, not the entity which builds and maintains the roads they use to getaway on, or the company who builds the car they use in their getaway.
AFACT need to come up with a way of defending their copyright which doesn't unfairly burden unrelated parties such as ISPs.
That is what the last court case showed. Now AFACT are appealing because, as noted, they're greedy, nasty folk.
Cyber Trekker
While I concur with certain points made by you in your comment, Steven and CS, let it be understood that the peculiarity of the modern approach to copyright is just that - in effect, it is a modern viewpoint. Once cannot logically claim the modern viewpoint as the basis of copyright, only insofar as it applies to the modern era. Copyright, therefore, has gone astray in its original purpose and that extensively so. That such would in most instances not be held to be so by the multitude and especially so-termed copyright authorities, of itself means little if anything. The moderns, to utilise a term, know little of the real and abiding origins of the copyright concept and are, therefore, reliant on the false conclusions built around a more modern conception thereof.
I am not interested what government, business and the law say pertaining to this, as they are as much fools as a lot in the general public. In fact, I would dare to say, even more so than the latter. That almost every human on the face of this planet is affected by false belief systems and incorrect histories prevents them from viewing things directly, thereby causing them to view them askance. They, therefore, limit their viewpoint and their argument to the currently accepted belief systems and enforced notions.
It would be true to say, especially in respect to the majority of the people who would read this site, that they would be inclined to disagree with my presentation. After all, they cannot divorce themselves from preconceived notions and their own limited intellectuality. A true thinker goes beyond the common herd and the common herd would generally go against the true thinker. This has been happening throughout human history, but the generality of genus homo of Terra never learn from the mistake. Hence, say to say, the repetition of history. Why is it assumed that the commonly agreed history and conception are absolutely correct? Such a line of thought is absolutist in its approach and its character. Little minds for little people, I would venture to assert with a respectful dignity. More anent this cannot be stated in a poignant consideration, as the prevailing adversity prevents it and I cannot be bothered in wasting my time and energy in a useless pursuit.
Try to deride me all you want, the point is that you are not an all-knowing and infallible god. It will, therefore, always be true that such is indicative of a biased and inferior mentality. As the old saying goes, magna est veritas et prevalebit.
Darknight
@CS
Copyright infringement is not theft. They are two different things. If you were an artist what would you prefer.
A. Bob walks into a stall and steals a CD
B. Bob downloads the CD
If you equate copyright infringement to theft both the situations are the same. But they are not.
MegaMo
@Steven Very well put; I totally agree on your first point.
@Darknight Infringement comes in many forms, theft is most certainly included. Whether A. or B. it doesn't really matter, in either case someone is having revenue/product stolen from them. Whether it's the right owners, the store owners, creators etc. Both instances infringe on a law of some kind ..
The issue with IINET (+ other ISPs) is simple, whilst they are not themselves directly infringing, they are 'indirectly' (AFACT might say directly) generating revenue off the hard work and investment of others. The oft used comparison between actual physical theft and say, public infrastructure such as roads, is therefore completely off target; e.g. councils/construction companies do not rely on 'criminals' to generate their primary stream of income. Not saying I agree with AFACT's tactics by any means.
With new technology comes new problems.. legal and otherwise.. it's importantusers are informed on these issues and how their use it may adversely affect others (in this case creative industries) instead of just believing they have a right to free sh*t because it is easy to obtain (and stupid sh*t like.. studios, actors, labels, artists etc makes shedloads of money, so don't deserve to be paid).
Traditional revenue models don't work for record and film producers any more, and yes this is an issue for them to resolve, but ultimitely this should be with cooperation from those now generating the majoriy of income from new revenue models (e.g. ISPs).
Yes the days of physical product are over (although vinyl music sales are actually growing) and the game has been turned on its head. But to just dismiss the concept of copyright, along with the laws in place to protect it, is blatantly moronic.. ie @cyber trekker, your 'argument' makes no sense at all.. the whole 'us and them' premise, really reflects on the volatile state of your sanity and overall perception of reality. If you were to go outside, you would likely find yourself surrounded by copyright owners of one type or another. Creatives are everywhere, they are real people and no doubt many are 'poor as a humble vagabond through specious reasoning.' (whatever the f*ck that is supposed to mean!?)
My 2cents
Anon
Hold on a moment. how can we be expected to playpen users when the playpen is already full of 3 year old AFACT executives?
WHERE DO YOU SUGGEST WE PUT THEM SIR? WHERE?
Additional. pulling an IP address from a torrent tracker isn't proof of piracy. There are torrent "hacks" quite freely available which allow users to "fake" how fast or how much they've downloaded or uploaded and report it to the tracker.
What proof does the AFACT have that I am not using one of these "hacks" and doing exactly what they are and monitoring IPs? I could just be "faking" that i've downloaded something and not be infringing on their copyright at all.
It's a technicality but they can only see what the tracker is reporting to them like everyone else. Since the computer is dictating what's being reported to the tracker, there's no way to know if it's telling the truth.
ANONYMOUS BY TECHNICALITY. WE ARE LEGION! Who's with me /b/rothers?
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