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The Courts The Internet Your Rights Online

Landmark Ruling Gives Australian ISPs Safe Harbor 252

Posted by samzenpus
from the pick-on-someone-your-own-size dept.
omnibit writes "Today, the Federal Court of Australia handed down its ruling in favor of the country's third largest ISP, iiNet. The case was backed by some of the largest media companies, including 20th Century Fox and Warner Bros. They accused iiNet of approving piracy by ignoring thousands of infringement notices. Justice Cowdroy said that the 'mere provision of access to internet is not the means to infringement' and 'copyright infringement occurred as result of use of BitTorrent, not the Internet... iiNet has no control over BitTorrent system and [is] not responsible for BitTorrent system.' Many Internet providers had been concerned that an adverse ruling would have forced themselves to police Internet traffic and comply with the demands of copyright owners without any legislative or judicial oversight."
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Landmark Ruling Gives Australian ISPs Safe Harbor

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  • by SpeedyDX (1014595) <speedyphoenix@gm ... m minus language> on Wednesday February 03, 2010 @07:35PM (#31017320)

    This case is probably not over yet.

  • by MrShaggy (683273) <chris.anderson@nOsPam.hush.com> on Wednesday February 03, 2010 @07:37PM (#31017344) Journal

    Its the supreme court after all. I think that says it all.

    maybe ACTA will be nexT?

  • by Pushpabon (1351749) on Wednesday February 03, 2010 @07:41PM (#31017362)
    ...common sense? But it's Austfailia! This can't be true! Somehow they'll find a way to overturn this I know it.
  • sigh (Score:3, Insightful)

    by wizardforce (1005805) on Wednesday February 03, 2010 @07:43PM (#31017402) Journal

    "copyright infringement occurred as result of use of BitTorrent, not the Internet...iiNet has no control over BitTorrent system and [is] not responsible for BitTorrent system."

    The important part is what isn't said. The ruling didn't say that there was no obligation to police a certain part of the net for copyright violations, just that the ISP wasn't responsible for BitTorrent and thus wasn't obligated to police that part of the net.

  • Re:Good news, but (Score:5, Insightful)

    by Capsaicin (412918) on Wednesday February 03, 2010 @07:44PM (#31017412)

    we still have a proposed Internet Filter, no R18+ rating for video games, and a South Australian government that passed a law saying that every person commenting about the election online must provide their real name and postcode.

    You missed something else we still have. The separation of the administrative/legislative and the judicial arms of government.

  • by Wowsers (1151731) on Wednesday February 03, 2010 @07:47PM (#31017430) Journal

    Don't expect a sudden rash of common sense to be replicated around the world by judges.

    I'm sure there are plenty of judges that will give the "correct" verdict for the media companies for an appropriate "compensation package."

  • Re:sigh (Score:5, Insightful)

    by mabinogi (74033) on Wednesday February 03, 2010 @07:50PM (#31017460) Homepage

    The important part is what isn't said. The ruling didn't say that there was no obligation to police a certain part of the net for copyright violations, just that the ISP wasn't responsible for BitTorrent and thus wasn't obligated to police that part of the net.

    so, "the law recognises no positive obligation on any person to protect the copyright of another" doesn't meet your definition of that?

  • by Areyoukiddingme (1289470) on Wednesday February 03, 2010 @07:59PM (#31017534)

    One supposes he meant "private citizen" when he said "person".

    And if that holds up on appeal, you can bet there will be a scramble to change it.

  • Favourite quote: (Score:4, Insightful)

    by fabs64 (657132) <beaufabry+slashdot,org&gmail,com> on Wednesday February 03, 2010 @08:09PM (#31017616)

    "the law recognises no positive obligation on any person to protect the copyright of another," - Justice Cowdroy

    Ah, reasonable, rational, and direct. Love it.

  • by Anonymous Coward on Wednesday February 03, 2010 @08:21PM (#31017718)

    You are wrong. The Fucken' Grouse Court of Oz is higher.

  • Re:Good news, but (Score:5, Insightful)

    by bmo (77928) on Wednesday February 03, 2010 @08:27PM (#31017758)

    What got me was that he basically said the only way to get it scrapped was if he was re-elected.

    That's some brass balls.

    From here in the US, while we've had our problems, it certainly seems like you guys have forgotten the old pledge "We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties."

    --
    BMO

  • by poetmatt (793785) on Wednesday February 03, 2010 @08:28PM (#31017772) Journal

    really? You know, most judges worldwide do tend to read into the decisions made by other countries and cite them, as there are many smart law folks. Whether they disagree or not sure, but simple jurisprudence does exist.

  • by Capsaicin (412918) on Wednesday February 03, 2010 @08:34PM (#31017802)

    One supposes he meant "private citizen" when he said "person".

    One is in error. At law a corporation is a 'person.' Indeed the personality of a corporation is a sine qua non of the corporate form (the other being the limited liability of that person). Contrast this with a partnership, which is several persons, or a non-incorporated company, which is a vehicle through with the person(s) who own(s) it operate.

    What you call a "private citizen" is conventionally referred to as a 'natural person.'

  • Re:Sentator Conroy (Score:3, Insightful)

    by MichaelSmith (789609) on Wednesday February 03, 2010 @08:51PM (#31017914) Homepage Journal

    No. Conroy is a tool. Getting rid of him won't change the underlying problem.

  • by masher_oz (1145983) on Wednesday February 03, 2010 @09:16PM (#31018092)
    So it looks like merely making a file available isn't an infringement. This is congruent with the finding that

    20. The law recognises no positive obligation on any person to protect the copyright of another. The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts. In the circumstances outlined above and discussed in greater detail in my judgment, it is impossible to conclude that iiNet has authorised copyright infringement.

    Just because you're able to copy my file doesn't make me responsible.

  • by rswail (410017) on Wednesday February 03, 2010 @09:47PM (#31018312)

    "letting it seed" isn't transmitting it ("making available") or copying it. It's made available once (seeded), and then each individual downloading is infringing. This means that even if they do manage to prosecute an individual, it will be for one copy made (if they catch them downloading), and one making available (if they catch them seeding).

    That severely limits the potential liability, makes it a civil offence, not a criminal one and probably not worth the studio's time.

  • by InfinityMinusOne (901693) on Wednesday February 03, 2010 @09:57PM (#31018382)

    This is a very strange argument. If I torrent a movie and let it seed indefinitely, I will almost certainly have distributed more than one copy of the film. Did the justice really believe that torrenting is a one-for-one kind of activity where a downloaded work is uploaded once and only once? I haven't read the decision, but I wonder how much of it concerned downloading versus uploading.

    Actually, the judge is correct. Some people seed more, some people seed less, but on average the number of uploads for each bittorent participant is equal to 1.

    The reason is, for any given file distributed through bittorrent, the average number of uploads or downloads per person is each equal to the total number of uploads or downloads, divided by the number of persons participating. Since each kilobyte downloaded is uploaded by someone else, the total number of uploads and downloads are equal. So the average number of uploads per person has to be equal to the average number of downloads per person. And for any participant, that average number of downloads is 1.

    I'm ignoring the possibility of incomplete downloads, blocks that needed to be re-downloaded, or the fact that the original seeder didn't need to download the file, but those are fairly minor factors that will not substantially alter the result.

  • by Dr Damage I (692789) on Wednesday February 03, 2010 @09:58PM (#31018392) Journal

    In order to understand this portion of the ruling, one must assume that the judge is not referring to persons making the file available, but to persons downloading the file. Which makes sense, because otherwise you end up double counting many times over: Once you start counting uploads, you multiply the total number of violations without increasing the number of copies being made.

    Suppose you have 1 file, 10 persons making copies and one person seeding the file (A highly simplified example for the sake of argument). if you count only downloads, you have 10 infringements: equal to the number of copies being made of the file. I assume that the recording companies would like to count uploads as well, including partial uploads. In which case, each person downloading the file would also be uploading portions of the file to up to 9 other people for a potential maximum of 110 infringements (the seeding user uploads to 10 people, each downloader downloads 1 time and uploads to as many as 9 people) where only 10 copies of the file were actually made. A fairly bizarre outcome IMO.

  • by blind monkey 3 (773904) on Wednesday February 03, 2010 @10:25PM (#31018546)
    Sorry but I suspect the endgame is presented in this http://www.abc.net.au/news/stories/2010/02/04/2809856.htm [abc.net.au]
    quote:
    Outside court, Australian Federation Against Copyright Theft executive director Neil Gane said he was disappointed with the decision. He said the case was lodged to try to protect the livelihoods of the thousands of Australians who work in the television and film industries. Mr Gane said he was confident that the Federal Government would now review the laws surrounding copyright infringement.

    as the saying goes, who needs judges and courts when you can afford politicians.
  • by Hucko (998827) on Wednesday February 03, 2010 @10:42PM (#31018614)

    Not at the cost per megabytes that is charged here.

  • Please mod this up (Score:1, Insightful)

    by causality (777677) on Wednesday February 03, 2010 @10:49PM (#31018658)

    Sorry but I suspect the endgame is presented in this http://www.abc.net.au/news/stories/2010/02/04/2809856.htm [abc.net.au] quote: Outside court, Australian Federation Against Copyright Theft executive director Neil Gane said he was disappointed with the decision. He said the case was lodged to try to protect the livelihoods of the thousands of Australians who work in the television and film industries. Mr Gane said he was confident that the Federal Government would now review the laws surrounding copyright infringement. as the saying goes, who needs judges and courts when you can afford politicians.

    Please mod this up. A good study of history will show you that people who live for power and control do not give up easily. They would not see this as a defeat; it is merely a setback that requires a change of tactics. They know very well that they need only one major victory and thereafter, the result they want will become enshrined in law and almost impossible to repeal. To give a seemingly unrelated example, the USA income tax was "temporary". It's temporary alright, in the sense that one day the sun will stop shining...

  • Re:Good news, but (Score:3, Insightful)

    by Arker (91948) on Thursday February 04, 2010 @01:12AM (#31019358) Homepage

    and an ineffective government is bad no matter where you sit on the political spectrum

    Totally incorrect. For anyone not situated very close indeed to the sitting government on the 'political spectrum' an ineffective government is better than an effective one. The capacity for governments to do good is quite limited, their capacity to do evil is unfortunately not.

  • by wvmarle (1070040) on Thursday February 04, 2010 @01:22AM (#31019400)

    In my opinion, making available is close to publishing. It is surely debatable whether "making available" is copyright infringement. I think the consensus here is that "publishing" a work that you have no copyright (license) of is copyright infringement. Then the question is how would "making available" differ from "publishing", and how would this clear one from infringement?

    If I were to take a book (which is under copyright, and not mine) and make a dozen copies of that. As long as I keep those in my house and do not show it to anyone, it may fall under "fair use" depending on your jurisdiction. Actually probably this is already infringement but that's besides the point.

    Now I go sit on a busy street corner, with those books on a table in front of me, for anyone who comes by to take a copy from me. I allow them, do not charge for the paper and printing cost or anything, that's my decision. Is this publishing or making available? What if no-one takes a copy, am I suddenly clear of copyright infringement?

    Similar for when I would take this book, scan it electronically, make a torrent out of it, and publish it on a torrent site. Am I merely making it available? Am I publishing? And if so: what is the difference between "making available" and "publishing"?

  • by inKubus (199753) on Thursday February 04, 2010 @01:30AM (#31019422) Homepage Journal

    iNet has no control over BitTorrent system and [is] not responsible for BitTorrent system.

    To define it as a system is interesting, when it's really a "society". Bittorrent is simply the protocol of the society of people who wish to acquire media on the internet in a free (not as in beer) manner. If the media companies could provide a way to allow people to pay a reasonable licensing fee by choice for the content they provide then people would use it. Unfortunately the vast majority of people don't feel the content is worth what they charge. But the same individuals are also motivated by social pressure to watch the content, pressure that is created by the media advertising. So they make us want the content, but then don't provide it at a reasonable cost. This causes humans to naturally seek the path of least resistance, even if it means bending a few "laws" that are out of date and not really even relevant any more. Media would love to be drug pushers and they really are to a certain extent. Where it breaks down is that they create demand and are unable to provide supply therefore the free market takes over and makes it available. There is only one solution, to stop making the content, or to form a police state that regulates the content for the companies. Neither are a viable solution for anyone. Their profits will plummet in either situation. So what will happen is that there will be more consolidation in the industry, less competition, and only the company that can make content people want for as cheaply as possible will succeed. It looks like iTunes was a pretty good first guess. People will pay $1 for things if it's convenient. I don't see the industry going out of it's way to increase the convenience of acquiring their content so likely they will fold and the people who actually make the content will have to find a new way make it cheaply and get it to the customer.

  • by wintermute000 (928348) <benderNO@SPAMplanetexpress.com.au> on Thursday February 04, 2010 @03:00AM (#31019770)

    "Today's decision is a setback for the 50,000 Australians employed in the film industry,"

    Seeing as our film industry is pretty small + vast majority of piracy is for overseas content (the local content is mostly live TV stuff - sports, news, fluff reality and cooking shows etc. that nobody pirates, you just watch it if its on etc. and if you pirate neighbours then god bless your simple mind) that statement is kinda like sweatshop workers protesting that fake designer gear is depriving them of their 2 bucks a day.

    As for iinet, good on them, they're a good isp, shame about the inevitable appeal.

  • by GooberToo (74388) on Thursday February 04, 2010 @10:04AM (#31022380)

    allow people to pay a reasonable licensing fee by choice for the content they provide

    This is a straw man used time and time again. Even several studies prove otherwise. People steal just because they can and its usually driven by a sense of self entitlement. In other words, you have it, I want it, therefore you should give it to me, without any regard for its cost. Why pay $0.99 for a song when I'm not only entitled to it, but can receive that entitlement for free?

    At the end of the day, people are stealing because they can and the price is seemingly not an issue. And saying they wouldn't have otherwise payed for it is also a straw man as most studies indicate somewhere between 10%-25% who stole it would have otherwise purchased it. And for smaller businesses, taking a loss of 10%-25% can be a make or break deal. While not in any studies I've read, I strongly suspect that if the sense of self entitlement were addressed, that percentage would likely rise.

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