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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 Incisa (1737082) on Wednesday February 03, 2010 @08:44PM (#31017406)
    The salient quote from the judge - "the law recognises no positive obligation on any person to protect the copyright of another".
  • by ThinkOfaNumber (836424) on Wednesday February 03, 2010 @09:09PM (#31017610)

    Hey, I live in Australia and therefore I resemble that remark...

  • Re:Good news, but (Score:2, Interesting)

    by StrahdVZ (1027852) on Wednesday February 03, 2010 @09:20PM (#31017704)

    Actually it has NOT been overturned yet. The South Australian Attorney-General declared that he would scrap the laws AFTER the upcoming election. Now this is assuming that he and his party will still be in power after the election (a big assumption indeed).

    If he isn't then I'll bet my chops that the Conservatives who are then in power will do everything they can to retain the draconian law.

  • by spudda (1201863) on Wednesday February 03, 2010 @09:25PM (#31017748)
    The Issue was decided by a single judge, which means the likelihood of appeal to the full bench of the Federal court and the high court after that is 100%. I think this is a good day for Australian ISPs. And despite the whinging from AFACT it does not protect pirates since the copyright holders have had the mechanism of going to the court for a court order to name an ISP subscriber for years. They just elected not to use it and tried to bully subscribers with infringement notices. And any ISP that didnt pass on these notices were run over the coals by AFACT as this case has demonstrated. But what this case demonstrates is that AFACT is not above the law. However I can see the Government tightening the legislation at the end of this case making any decision by the high court moot when it gets reversed by the incompetent Conroy and his band of merry men
  • by tdelaney (458893) on Wednesday February 03, 2010 @09:46PM (#31017880)

    And additional important ruling (taken from the summary):

    10. The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs.

    This appears to be saying that when someone torrents, they only infringe copyright once. Which would make it economically unviable to go after people for casual copyright infringement via the internet, since damages would be severly limited.

  • Re:Good news, but (Score:4, Interesting)

    by Ralish (775196) <ralish@gma[ ]com ['il.' in gap]> on Wednesday February 03, 2010 @10:15PM (#31018084)

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

    The judicial arm is effectively separate, but the separation of the executive (administrative) and legislative arms of government isn't necessarily a good idea; look to America for some solid examples why. Which isn't to say it doesn't have its benefits, but I don't think they outweigh the cons. In particular, I don't think it in anyway increases government accountability, but it certainly does decrease government effectiveness, and an ineffective government is bad no matter where you sit on the political spectrum, as it impedes a government mandated by the people to implement policy from being able to do so.

  • by tick-tock-atona (1145909) on Wednesday February 03, 2010 @10:40PM (#31018260)

    To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.

    http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html [austlii.edu.au]

  • by Anonymous Coward on Wednesday February 03, 2010 @10:40PM (#31018262)

    I've re-arranged the applicants based on ownership or affiliation (including distribution deals); the last number in brackets is the order on the list. Not a lot is left....

    NBC UNIVERSAL:
      UNIVERSAL PICTURES (AUSTRALIA) PTY LTD (11)
      UNIVERSAL PICTURES INTERNATIONAL B.V (13)
      UNIVERSAL CITY STUDIOS LLLP (2)
      UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP (14)
      UNIVERSAL STUDIOS INTERNATIONAL B.V. (27)
      NBC STUDIOS, INC (19)
      RINGERIKE GMBH & CO KG (15) (Movie: "Wanted" (2008))
      INTERNATIONALE FILMPRODUKTION BLACKBIRD VIERTE GMBH & CO KG (16) (Movie: "Mummy 3" (2008))
      MDBF ZWEITE FILMGESELLSCHAFT MBH & CO KG (17) (Movie: "The Kingdom" (2007))
      INTERNATIONALE FILMPRODUCKTION RICHTER GMBH & CO KG (18) (Movie: "Mamma Mia!" (2008))

    VIACOM:
      PARAMOUNT PICTURES CORPORATION (3)
      PARAMOUNT HOME ENTERTAINMENT (AUSTRALASIA) PTY LTD (8)

    TIME WARNER:
      WARNER BROS. ENTERTAINMENT INC. (4)
      WARNER BROS ENTERTAINMENT AUSTRALIA PTY LTD (32)
      WARNER BROS INTERNATIONAL TELEVISION DISTRIBUTION INC (21)
      WARNER HOME VIDEO PTY LTD (23)
      VILLAGE ROADSHOW FILMS (BVI) LTD (12)
      PATALEX III PRODUCTIONS LIMITED (24) (Movie: "Batman Begins" (2005))
      LONELY FILM PRODUCTIONS GMBH & CO KG (25) (Movie: "Blood Diamond" (2006))

    WALT DISNEY CO.:
      DISNEY ENTERPRISES, INC. (5)
      BUENA VISTA HOME ENTERTAINMENT, INC. (9)
      DREAMWORKS FILMS L.L.C (20)

    NEWS CORP:
      TWENTIETH CENTURY FOX FILM CORPORATION (7)
      TWENTIETH CENTURY FOX FILM CORPORATION (AUSTRALIA) PTY LIMITED (10)
      TWENTIETH CENTURY FOX HOME ENTERTAINMENT INTERNATIONAL CORPORATION (22)
      TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC (33)

    SONY:
      SONY PICTURES ANIMATION INC (26)
      SONY PICTURES HOME ENTERTAINMENT PTY LTD (28)
      COLUMBIA PICTURES INDUSTRIES, INC (6)
      GH ONE LLC (29) (Movie: "Ghost Rider" (2007))
      GH THREE LLC (30) (Movie: "21" (2008), "Vantage Point" (2008), etc.)
      BEVERLY BLVD LLC (31) (co-financing fund with Relativity Media)

    SEVEN NETWORK (OPERATIONS) LTD (34)

  • by halcyon1234 (834388) <halcyon1234@hotmail.com> on Wednesday February 03, 2010 @11:08PM (#31018448) Journal

    The salient quote from the judge - "the law recognises no positive obligation on any person to protect the copyright of another".

    It's almost like the judge-- reads? {mindreel}

    "There has grown in the minds of certain groups in this country the idea that just because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with guaranteeing such a profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is supported by neither statute or common law. Neither corporations or individuals have the right to come into court and ask that the clock of history be stopped, or turned back."

    - Heinlein, Life Line, 1939

  • by obeythefist (719316) on Thursday February 04, 2010 @01:02AM (#31019060) Journal

    As a matter of fact, the Australian judge presiding over this case examined safe-harbour provisions and similar cases from US law and he mentions those examinations in the judgement document.

    This is common sense really, as ISP's are a carrier and not liable for the content that passes through their networks.

    Unfortunately what will happen is Conroy, the Minister for Communications, who has already identified himself as being strongly pro-copyright, will now attempt to enact harsh laws to force ISPs to surrender private information to AFACT companies and allow direct attacks on the Australian population. Conroy is the same minister who was voted Internet Villain of the Year last year for his ongoing attempts to enact a hidden, government controlled blacklist censorship system to "protect the children" (although really it just blocks political, anti-abortion and euthanasia websites and a few local Australian businesses thrown in at random).

  • by shadowbearer (554144) on Thursday February 04, 2010 @02:51AM (#31019504) Homepage Journal

      What does it matter? There is no possible way that all the uploaders or downloaders can be prosecuted in the court systems, even globally; and as the internet continues to expand, the "problem" is only going to get more complicated (worse, from the copyright holders perspectives)

      Even assuming the courts don't have better things to do... sooner or later, the courts are going to have to acknowledge that it's an unsolvable problem.

      From a technical standpoint, this issue was done and over with more than a quarter of a century ago (ie, there is never going to be any human-derived copyright protection system that can't be broken by someone smarter or more determined ). That the argument continues to get worse now says a lot more about our society and culture than it does about the technical problems.

      So let's just leave the technical side out of it already! Sheese... this has been said millions of times...

    SB
      (Master of restating the obvious, but obviously someone has to do it... again)

  • by Caity (140482) on Thursday February 04, 2010 @03:13AM (#31019580)

    I am an Australian lawyer and I will endorse what Capsaicin said - a corporation is quite definitely a "person" at law.

    It's difficult to pinpoint it as it's a Common Law definition rather that one that's set out in a statute. It's one of those things that just is, with origins in England in about the 15th century.

    I know it's not a great piece of proof, but for the sake of simplicity, I offer the definition of "person" [austlii.edu.au] in the Australian Corporations Act 2001 which includes a superannuation fund. If it can include a superannuation fund, you can damn well bet it includes a corporation.

  • by NoMaster (142776) on Thursday February 04, 2010 @03:50AM (#31019732) Homepage Journal

    If you read the ruling (I'm ~ 1/2 way through it now), he defines it as a 'system' primarily in order to distinguish BitTorrent (the whole kit & caboodle) from BitTorrent (the protocol), BitTorrent Inc. (the company), and various BitTorrent clients (which, to quote from para 60, "include Vuze, and, rather confusingly, the BitTorrent Client, which is the BitTorrent client of BitTorrent Inc."). In doing so, he nicely separates the technical, legal, and 'social' aspects - and decides purely on the legalities.

    (Yeah, 'social' in quotes - look, I'm old, so personally I'd argue against BT being some sort of expression of a proto techno-utopian society. I don't get Facebook or Twitter either ;-)

    Read the whole thing - it's remarkably easy to read (as decisions from Australian courts often are), well explained, and the decision is well thought out and justified.

    There's plenty of wry giggles to be found in there too - his explanation of the whole studio / AFACT / MPA / MPAA relationship, his respectful smackdown of many of AFACT's claims & arguments, and more - plus some interesting points regarding related issues such as the number of infringing copies each user is responsible for (hint: not as many as the MPAA / RIAA likes to usually claim).

    In short, this is a guy who either had a good handle on the tech beforehand, or has listened well to both the technical and legal arguments of both sides, and has ruled based on both the way the tech works and the law.

  • by Kjella (173770) on Thursday February 04, 2010 @03:51AM (#31019740) Homepage

    What does it matter? There is no possible way that all the uploaders or downloaders can be prosecuted in the court systems, even globally; and as the internet continues to expand, the "problem" is only going to get more complicated (worse, from the copyright holders perspectives)

    Because they will try very hard to make unreasonable allegations against each person, and unreasonable damages for each alleged infringement. Giving people 100,000$ in a speeding ticket because they don't catch 99% of those speeding wouldn't be justice, it'd be law enforcement by terror. The copyright industry is dying the death of a thousand needles, and would like each needle to count as murder.

  • Re:Suck it, AFACT (Score:3, Interesting)

    by Smegly (1607157) on Thursday February 04, 2010 @04:08AM (#31019812)

    The case was backed by some of the largest media companies, including 20th Century Fox and Warner Bros.

    Irresponsible behavior (some would say - criminal) and total lack of respect for our internet from these last century media company behemoths really does make it that much easier to justify going out of our way to never ever pay them a penny - on moral grounds. Oh they will still get paid, and paid very well for doing nothing, what with our taxes going right to their pockets [wikipedia.org]. What a convenient business model! However a serious correction in market capitalization is obviously in order for these people - they apparently will not be content until they destroy the internet [slashdot.org].

    As an aside, in parts of Europe they released the Disney channel last year or so to free view on TDT. Previously it was cable TV subscriber only where the post-war economic crisis was causing their viewer ratings to seriously drop. A generation of little EU'lings growing up without crying for their "Micky Mouse" tee-shirts or wanting to go to "WarnerBros world" must have scared the absolute goofies out of them.

  • by knarf (34928) on Thursday February 04, 2010 @08:42AM (#31021032) Homepage

    ...a deaf judge seems to have presided over a case against Men at Work [wikipedia.org] in which it is claimed that their song 'Down Under' plagiarizes a song from 1935 named 'Kookaburra Sits in the Old Gum Tree'. I listened to that song. It is nothing at all like the flute riff in 'Down Under'. Still... They [thecmuwebsite.com] Won [smh.com.au]. What do you think? [youtube.com]

  • by IndustrialComplex (975015) on Thursday February 04, 2010 @05:16PM (#31027130)

    Not until the copyright expires. I have no problem with reasonable copyright terms but this is yet another straw man as its completely orthogonal to the issue at hand. Excessive copyright terms are not justification to steal something today. So contrary to your flawed assertion, no you absolutely are not entitled to it as you see fit, on your terms and no other.

    You are also using terms like stealing which I believe implies a more extreme form of infringement (deliberately taking another's work and then reproducing it for sale), so your standards and my standards are different.

    I simply view the current copyright laws as a breach of the social contract and since I don't have the pockets to fix it, or the time/money to push something like that to the supreme court, Perhaps if my hardware wasn't intentionally crippled in order to prevent something that I wasn't doing in the first place. It has just reached the point where I simply have no care for it anymore. At least not in the state it is in now. As you have these companies lobbying to have a system instituted whereby people's Right to Free Speech can be stripped under very light judicial oversight... again, I simply refuse to honor it anymore.

    Much as if I saw someone smoking Marijuana. I don't care if it is illegal, the government is in the wrong trying to enforce such laws and I can not in good conscience support the prosecution of such 'crimes'. I don't personally do it as I have other motivations and reasonings, but I'd abstain from supporting any efforts to prosecute.

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