Aussie ISP Scans Downloads For Copyright Violation

Steve Nakhla writes: "According to this article, Excite@Home has begun snooping users' downloads in order to find copyrighted or pirated material. Violators have their access cut off. As an Excite@home user, this alarms me. What exactly is their definition of copyrighted? Doesn't the New York Times copyright their online articles? Can I not view them any more for fear of violating Excite's policies?"

Not all of @Home

[alanjstr]

The article says that this is Optus@Home, in Australia.

Re:Isn't everything copyrighted?

[raresilk]

Yes, it's automatic via authorship in the USA, although I believe it formerly was not. I think the poster may be confusing the "copyright notice" (which is commonly placed on copyrighted material to clarify that it's being distributed subject to the author's copyright, rather than being released into the public domain) with the copyright itself. There is an additional USA procedure called "registration," which you need to do in order to bring a lawsuit on your copyright, and also registration is helpful in the dispute itself (e.g., it places a time stamp on your claim of authorship.) But the copyright itself exists even if you never register. There is one exception called the "work for hire" rule. If you author something as part of your employment duties for your employer (like software if you're a programmer) then the copyright automatically goes to your employer, unless you make special contractual arrangements. But if you write a song in spare time, that's still your copyright, because it's not what the company hired you to do.

Additional disclaimer - IAAL, but not a copyright specialist.

Re:Isn't everything copyrighted?

[$FFh]

Yes, any work you create is automatically copywrited unless you specifically put it in the public domain.
http://www.loc.gov/copyright/circs/circ1.html [loc.gov] has more details.

IANAL, but i do play one on /.

Re:Isn't everything copyrighted?

[howardjp]

No, your heirs own the copyrights for 75 years after you die. Unless you transfer them. And patents last 17 years. Please, do not post patently false information like the above.

Monitoring means assuming responsibility for usage

[hillct]

This was an issue circa 1996 when ISPs were wrestling with weather or not they are responsible for the actions of their users ans as such should attempt to keep track of activities on their network. I though the general concensus was that ISPs were not liable for the infringing activities of their users, unless they state that they will attempt to prevent such activity in socuments such as 'Acceptable Use Policies'. It sounds like Excite@Home screwed up their acceptable use policy and some content provider threatened to force them to make good on their statements that they would monitor the network for 'unacceptable uses'. Reharding the acceptable use policy, they say:

A spokesperson from Excite@Home said, "we are not watching every bit and byte, but we would randomly check from time to time."

The US AUP [home.com] for their service describes illegal acticity but doesn't seem to describe how it will be observed. I was unable to locate the Austrelian policy. Presumably is't different in this regard. Also this statement, supports my theiry that some content provider called them on a badly written AUP that they have to make good on:

"I wouldn't call it policing, we're just trying to comply with the law and by highlighting the issue to customers, its putting us in a better position as acting as a responsible Netizen on the Internet," the spokesperson said.

I've written a couple AUPs in my day and one has to be vary careful about what one says will be done to keep track of user behavior, because any knowlege of illegal activity must be acted upon, whereas simply providing bandwidth does not usually create so many legal obsticles, no matter how many threatening letters you may get from the RIAA and other such organizations.

--CTH

Re:Isn't everything copyrighted?

[jhoug]

According to the article Fingered by the Movie Cops [salon.com] on Salon, in the US Excite is not actively scanning content, but is reacting to complaints by third parties, as they are required to do under the DMCA. In other contries other rules apply, usually with much less protection of speech than here in the US. One of the things that worries me is that under current international law - the Berne Convention [cornell.edu] - eveything created is implicitly copyrighted. No need for the circle-c or "Copyright yyyy" incantations (these provide some additional notice of copyright, but aren't needed for protection like they were in the past). So restrictions of posting of copyrighted material can apply to everything, bringing discussion to a halt. Since the US claims to be in line with Berne, there is also the concept of "fair use", but various court interpretations have made this a very muddy field indeed. Replying to a post and quoting it is considered universally OK, but there are limits to the size of quotes for review or commentary (posting someone's entire book to merely say that you agree with it would still be unacceptable). If everyone in your office went to a library to copy a magazine article for their own use that is probably OK. If you make several copies to distribute to them (exact same effect) it is not ok. The DMCA seems to change all of this, and is being used extraterritorially as well. The prior restraint requirement is extremely troubling.

The Godfrey vs Demon case

[Anonymous Brave Guy]

This seems a related idea to the case of Godfrey vs. Demon [cyber-rights.org] in the UK a while back?

That case raised a number of important questions in UK law for the first time, regarding an ISP's status as a publisher, and hence the extent of their responsibilty for content they carry. IIRC, the court found against Demon on the basis that Dr Godfrey had notified them of the offensive postings and they then still failed to remove them.

However, this immediately leads to the conclusion that an ISP must, for its own safety, immediately remove any posting about which it receives a similar complaint. This is obviously subject to abuse through false claims by parties upset by a genuine and legitimate post. If the original poster could then also sue, on the basis that an ISP removed their material without an appropriate reason (big question there), then an ISP is left in an untenable situation, where they have to decide immediately and without judicial support on the legality of any post about which they receive a complaint. Oops... :-(

It pays to actually read the terms of the letter

[Anonymous Coward]

I am an Optus@home cable user and received the email stating the changes to the T&C's a few days ago.

Optus@home is a joint venture between Optus (2nd largest Australian telco) and Excite@home Australia. Optus provides the pipes, Excite provides the content and menus.

Most of the comments on /. so far appear to be by people who have only read the headline and summary and not by actual Optus@home members. Optus is not proposing to scan everyone's traffic looking for copyright infringement. They have just reserved the right to scan traffic relating to a particular person IF a complaint of copyright infringement has been made against them.

You'd have to be doing something pretty stupid as a home user to be spotted by ARIA (Aust equivalent of the RIAA) or MPAA. I've only ever seen them go after people who are commercially selling copyright infringing works. The little guy doing some file trading for free is just too small a fish and there are too many of them.

So in reality, whilst I definitely don't agree with what Optus@home is doing by scanning any individual's network traffic without a court order, this situation is not as bad as everyone seems to be making out.

Optus@home designs its network to be used by residential customers. If you want to run a business and make money off the net, you shouldn't be on Optus@home. Go and find a commercial network and free up the bandwidth for the rest of us.

*Cough*... Telstra broadband users would be crying at that last statement... On Optus, we already get data transfer volume limits six times higher and transfer speeds up to sixteen times faster! */Cough*

So if you are an Optus@home user, I recommend that you don't lose any sleep over this warning unless you are distributing pirated software for profit over the network (ie. charging people hard currency for it).

Re: How is this different from a wiretap?

[elemental23]

Forgive my ignorance on this matter, but don't ISP's ALREADY log every task you complete? I could be wrong, but I would think they have records of what websites and newsgroups and such you've been to.

Speaking as an employee of one of the top five largest ISPs in the world, I can say there is no way we could do that. Do you have any idea the hardware and disk space it would require to log everything our users do?

Not to mention that we don't care. It isn't any of our business unless you're breaking the law or violating our AUP (eg, spamming, etc), in which case we find out about it when we get complaints.

Optus@Home AUP

[jameshowison]

The Optus@Home AUP is here [excite.com.au]:

Section 1 is called "illegal activity":

1. Illegal Activity
1.1. You must not use the Service for any activity that violates any local, state, federal or international law, order or regulation. Prohibited activities include, but are not limited to:

Posting, disseminating or in some cases accessing material which is unlawful. This includes material that is or would be classified RC or X and includes material that is or would be classified R where a restricted access system is not in place. Such content includes but is not limited to: material containing detailed instruction in crime, violence or drug use; child pornography; bestiality; excessively violent or sexually violent material; real depictions of actual sexual activity; obscene material; and content hosted in Australia which is classified R and not subject to a restricted access system which complies with criteria determined by the Australian Broadcasting Authority (ABA). For more information about the regulatory regime applying to online content go to www.aba.gov.au

Disseminating material which violates the copyright or other intellectual property rights of others. You assume all risks regarding the determination of whether material is in the public domain.

Pyramid or other illegal soliciting schemes.

Any fraudulent activities, including impersonating any person or entity or forging anyone else's digital or manual signature. If you do violate it

9.1. Optus is not obligated to regularly monitor your usage of the Service. However, in its efforts to promote good citizenship within the Internet community, it will respond appropriately if it becomes aware that you or someone with access to your Service has violated this Acceptable Use Policy or the Customer Terms or you or someone with access to your Service, has used the Service in an inappropriate manner. Although Optus has no obligation to monitor the Service, Optus reserves the right to monitor (and request Excite@Home to monitor) your bandwidth, usage or content, to identify violations of this Acceptable Use Policy; and to protect the Optus@Home Network and other users of this Service.

Who asked them to begin monitering?

There's no indication of whether this is a responsibility under law or whether they have chosen to do this. I note that the policy has not changed since September 2000.

James