BitTorrent Trial Makes Australia's High Court 98
daria42 writes "Australia's highest court has agreed to hear the long-running BitTorrent case between one of the country's largest ISPs, iiNet, and a group of film and TV studios represented by a copyright organization known as AFACT. The case has the potential to determine once and for all whether Australians who download content via BitTorrent can have their Internet connections disconnected upon the request of the studios. It's lawyers at ten paces!"
Im supprised it got this high. (Score:4, Interesting)
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That's not necessarily true. The high court hears appeals against Supreme Court decisions, Constitutional challenges, and all areas of contract and other law - particularly in very high value disputes.
Constitutional challenges are a small minority of the work the High Court does.
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The High Court also addresses cases where two jurisdictions have a differing ruling on something relating to federal law (say, if the 9th circuit and 7th circuit each rule opposite ways).
But you can't appeal a Supreme Court decision. They're the final authority. The "high court" IS the Supreme Court.
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I'd need to go look it up, but I thought you could dispute a High Court ruling to the Privy Council in the UK.
Re:Im supprised it got this high. (Score:4, Informative)
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Australia also has a constitution [wikipedia.org]. We just don't treat it like Moses brought it down off the mountain.
Hey now, we yankees don't do that! For a while, we amended it every few years, whenever we got tired of what it said. Eventually we realized changing it was unnecessary work, and just started pretending it said something new.
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Australia also has a constitution [wikipedia.org]. We just don't treat it like Moses brought it down off the mountain.
Please explain. The Constitution in Australia establishes the structure and powers of government and the law. How is that less sacrosanct than the US Constitution? And it gets interpreted in new ways just as the US Constitution does. But there is no Bill of Rights and only a few rights are expressed or implied which makes it an inferior document in my view to its US counterpart. I don't know but I imagine Australia's citizens back then must have thought Common Law protections were good enough - but tho
Re:Im supprised it got this high. (Score:5, Insightful)
Re:Im supprised it got this high. (Score:5, Informative)
You're exactly right. It is legally just as sacrosant as the US Constitution. Hell, large parts of it were based ~on~ the US Constitution. And indeed you aren't the only one to note that it lacks one of the US Constitution's most well-known features.
The introduction of a formal Bill of Rights in Australia has been a hotly debated jurisprudential topic on and off for much of the last few decades. The arguments against include (broadly speaking), things such as:
- Common law protections and the principles of equity are good enough (there is some truth to this - common law protections in the UK and Australia are reasonably comprehensive); or
- To list or precisely define rights, is to limit them (to those explicitly mentioned). Therefore no Bill of Rights please! (again, I can see some merit in this argument - the rights that are important today might not be important in the future, or rights we haven't even thought of today might become relevant, so if your Bill of Rights is difficult to amend it may become 'out of date' rather quickly)
The arguments for a Bill of Rights are obvious: the same ones that led to the US one. There is also some debate about whether such a Bill would actually be in the Australian Constitution (pretty unlikely IMO), in entrenched legislation ('normal' legislation, but with extra requirements to amend it that make it very difficult to overturn or change), or just a normal Act (with the standard options for repeal and amendment available).
Apologies if you knew all this already - unclear from your post whether you are American or Australian. But could be interesting reading for someone. :)
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- To list or precisely define rights, is to limit them (to those explicitly mentioned). Therefore no Bill of Rights please! (again, I can see some merit in this argument - the rights that are important today might not be important in the future, or rights we haven't even thought of today might become relevant, so if your Bill of Rights is difficult to amend it may become 'out of date' rather quickly)
Well the Ninth Amendment [wikipedia.org] is supposed to protect us Americans against that but politicians and political shills often find it more convenient to ignore that :) ("You have no constitutional right to _blank_ so the government can _blank_ you hard in the _blank_ any time they want")
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You may already be aware of this but the US bill of rights, an explicit enumeration of our rights, was quite hotly debated here as well. It was felt by many at the time that any explicit enumeration of rights would seem to imply that those are the only rights we had and that as long as the government did not infringe on those it could do absolutely anything else it wished.
Predictably enough that is precisely what has happened. The US government most definitely does not recognize any rights that are not in t
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Also people arguing against reality.
Impact is no laughing matter (Score:2)
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Actually Australia has penguins in various coastal locations anywhere in the southern half (approximately) of the continent. They aren't the same species as the stereotypical penguins you would think of when you think of Antarctica, though. Some of them look very different.
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iiNet (Score:5, Insightful)
When AFACT wanted ISP's to pass on copyright infringement notices to their users, Telstra, Optus etc were happy to roll over and do as they were told. iiNet effectively said "If you have proof of a crime being commited, take it up with the police. We're not here to have our customers harassed just because you say so". AFACT took exception to this, hence this trial
Re:iiNet (Score:5, Funny)
wow, it's like a battle of wits between two unarmed opponents.
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Would that be a battle of twits?
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This is why I've been a a happy customer of iiNet for nearly a decade
Ditto. I like my ISP providing the service I pay for and not terminating it because a third party (ie NOT the police or a court) says they should.
Nonsense (Score:1)
I see a lot of over-reactions here. Just because the High Court has agreed to hear the trial does NOT mean that the outcome will be any different this time. IANAL, but AFACT's claim seems like absolute bullshit. From Copyright Act 1968 [austlii.edu.au]:
A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in a work merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.
That seems like some pretty strong legalese in favour of iiNet.
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Copypasted from Wikipedia [wikimedia.org]:
The High Court's appellate jurisdiction is defined under Section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the States, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia), and from decisions made by one or more Justices exercising the original jurisdiction of the court.
It seems that the High Court was originally reserved for matters pertaining to the Constitution and Commonwealth offices, but now has a much larger jurisdiction. Of course, IANAL, so can anybody confirm/deny/correct this?
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Only if AFACT's lawyers are actually challenging iiNet on something in the Constitution though. That is, AFACT would somehow have to argue that that provision from the Copyright Act is somehow unconstitutional, which seems a very long bow to draw. I suspect therefore that this case is just a standard appeal to the High Court on some other legal matter, not a Constitutional one.
Then again I haven't actually read the previous cases or the article so I could just be wrong. I just have a gut feel the Constituti
Re:Nonsense (Score:5, Funny)
I'm totally ignorant of the issues but I still have an opinion.. welcome, this is what Slashdot is for :)
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I'm totally ignorant of the issues but I still have an opinion.. welcome, this is what Slashdot is for :)
Well yes, but you post failed to voice that opinion loudly.
You are also supposed to just guess what the TFA and TFS says by only reading the headline and then complain that the TFS doesn't say the same thing as the TFA and that both were written by morons.
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Thanks for clearing that up.
Copyright Theft? FAIL! (Score:1, Insightful)
Illegal file sharing is copyright INFRINGEMENT, not theft! - Get it right, people! Or are you too stupid to get it?
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Every time somebody uses the word "copyright" to refer to the copyrighted work itself, I die a little inside...
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You're thinking of patents.
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Care to explain the difference? In my view, it is the same.
Theft - take something from someone. For example, take an iPhone. The owner is deprived of his property while the thief benefits from the property against the will of its (former) owner.
Copyright infringement: Deprive the copyright owner of his right to distribute his material as he see fit. The owner is deprived of his right, the thief benefits from the material against the will of its copyright owner.
Very close in my book. YMMV.
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I don't think it's a very good way to describe it because the situations are quite different. Typically, when someone thinks of theft, they probably think of the loss of physical property, not the loss of a mere idea (or a "right").
And you've just deprived someone of the ability to believe that copyright infringement isn't the exact same thing as theft! You thief!
Re:Copyright Theft? FAIL! (Score:5, Insightful)
That doesn't mean "copyright infringement" is a good thing, but you're going to have to come up with a better argument than that.
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The copyright fdoesn't gives you the right to distribute, it gives you THE EXCLUSIVITY to distribute. When some random dude download your stuff and distribute it for free, he doesn't deprive you of the exclusivity? How can you view it that way?
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Heard of the first sale doctrine? Hint, copyright is about copying.
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Once you exercise your right to exclusivity (i.e. you give someone a copy), you have lost your exclusivity, according to your reasoning. If you think about it a little, you will realize that it doesn't matter how a second party obtains a copy; the exclusivity is the same.
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Are you going to make the case for "levels of exclusivity"? If so, how will you objectively define those levels, and how many copies will it take to get to "level zero"?
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1. First, you say that if you copy my material I can still sell it. Is it still true if you copy my material and then offer it to the world for free? Because that's basically how P2P networks work. You actually say it in the end of your post, but whenever you download on BitTorrent, you leech as well (that's for most people using BitTorrent, you may have altered your client)
2. Second, I have the right to sell my work, but society grants me something more: I am the only one to have the right to distribute my
Re:Copyright Theft? FAIL! (Score:5, Insightful)
Furthermore, despite the fact that all music is available to me through illegal channels, I still buy loads of music, even more so then before it was feasible to download anything.
The ability to access loads of music has given me the opportunity to sample a lot more music then radio alone allowed.
2) Piracy will deprive you of exclusivity to distribute, but so does broadcasting.
3) Broadcasting means people have access to your work beyond your control.
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1) You still buy music. Fine. This is completely besides the point though.
2) Sure. Not all artists choose to broadcast, so I fail to see what that proves... If the artist chooses to broadcast, it doesn't deprive the artist of the ability to choose so, since he just did !
3) See #2
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If a buy a car and turn around and sell it, that sale is not called theft. If I steal a car and turn around and sell it, that sale is not called theft. (Sale of stolen property is not, in and of itself, theft).
Doing the same with an electronic copy of a song, book or movie does not magically turn the sale (or gift) into theft. It is what it has always been -- infringement of the copyright.
Please remove from your mind the idea that a lost sale is theft. That is logically unsupportable. To paraphrase the
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If you read both my posts carefully, you will see that I am not talking about lost sales. At all. So maybe you answered to the wrong person...
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If you absolutely need to fall back on a comparison to physical property violations, it's much more like trespassing, but it's much better to consider it on it's own merits
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If society decides to give someone the exclusivity to something, and then a bunch of dudes do the thing anyways, you're saying the owner still has the exclusivity on that thing? How twisted is that?
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Re:Copyright Theft? FAIL! (Score:5, Insightful)
There is also a difference between copyright infringement and theft, and you know that. For the particular question, the right to exclude acts in largely the same way in both trespassing and copyright infringement. It's also similar in many ways to the right to not be assaulted. If I punch you in the face I have assaulted you, and violated your right to not be assaulted. If someone else punches you in the face, they have also violated your right to not be assaulted. Even if a hundred people punch you in the face, any further assault is going to be a violation of your rights. It's a bit awkward to think of it this way, but you have the right to exclude yourself from acts of assault. If "a bunch of dudes" assault you anyways, you still have the right to exclude people from assaulting you. Now, please don't think I'm saying that copyright infringement is assault or is similar outside of violation of the right not resulting in the loss of the right. Copyright infringement is copyright infringement, and claiming it to be anything else is almost certainly a bad idea.
True, but mathematically, the peers average 1 copy downloaded and 1 copy uploaded, and they are only halfway responsible for that traffic, making them, on average, responsible for the creation of 1 illicit copy
You're going to need a citation for that, as most of the studies I've seen show that those that illegally download end up having more than they could afford to acquire legally. Your wording does seem to indicate a major part of the underlying cause, though, as illicit channels often provide a better, easier product than legitimate channels. If legitimate channels made it is easier for consumers to get what they want, copyright infringement would likely decline or at least not grow as quickly.
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Bringing your own drink into a movie theater deprives the management from its right to sell you stuff, and benefits from the movie which is subsidized by those side profits. Even if you paid for the movie, you get it cheaper than someone who bought the drink.
I guess that's theft too?
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If I build an identical house than you have, I don't steal your house.
If I buy an identical car than you have, I don't steal your car.
If I wear identical clothes than you, I don't steal your clothes.
If I copy your book line by line, I don't steal your book.
Just because some act damages your financial outcome, it's not automatically theft.
Just because some act gets me value, and deprives you of value, it's not automatically theft.
If I walk through your garden and thus disturb your privacy, I don't steal your
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The usual argument is that infringement is not theft because it doesn't deprive the IP owner of anything. I'm merely trying to point out that it's not true.
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Ethically, there is also little difference between the other examples I mentioned and theft. In all cases one causes damages to others for personal gain.
But that's exactly the point! If you label all cases of "causing damages to other people for personal gain" as theft, then the special case for theft (removing an object out of the reach of the rightful owner without his consent to use it yourself) needs another name.
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The main difference for me is that something that was stolen can used by the new owner the same way than the old, rightful owner could have used it.
If I steal a car, I can drive it as its rightful owner could drive it. If I steal money, I can go shopping or put it in a savings account as the rightful owner could have done.
But if I infringe on someone's copyright by unlicensed copying, I can not use it as the copyright holder could. I can not sublicense it for instance.
There are types of copyright infringeme
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You're telling me that downloading stuff from a place you know is not legal is not against the law?
In other words, if a law enforcement agency came to your house, found 1000TB of movies on your hard drive and you couldn't produce a proof of purchase for any of them, you wouldn't be in trouble ?
Laws seems to be different in your country than in mine. My mistake.
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Copyright infringement: Deprive the copyright owner of his right to distribute his material as he see fit.
Isn't that really just "deprive the copyright owner of the ability to deprive others of the ability to copy information" ? Either way, it's not a right since the government isn't a party to the transaction, merely an arbiter. It's just a simple law, not all laws are rights.
Re:Copyright Theft? TROLL! (Score:2)
Illegal file sharing is copyright INFRINGEMENT, not theft!
What are you, a troll? Nobody mentioned theft until you came along. I just browsed at -1 to make sure I didn't miss something, but only occurence of the word happened in the thread that you started. It wasn't in the article and it wasn't in the original submission.
So what possessed you to become so indignant about the term?
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Yes, people DO get it. Now do you get that people use the word theft because they wish to stretch the definition of the word for whatever reason (exaggeration, to empathize, emotional appeal, belief that copyright violation deprive enough to equal theft, etc). It's not a case of stupidity, just yet another case of where language is perhaps too mutable.
Headlines (Score:1)
RIAA gets their way, ISPs forced to shut down from substantial losses.
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So again the victims are left out (Score:2)
Re:So again the victims are left out (Score:4, Interesting)
No ... there ARE no victims ... yet. That's what the case is about.
AFACT tried to make iiNet disconnect its users. iiNet refused (hence no victims). AFACT took iiNet to court. If iiNet lose, then yes there may be victims in the future. But as of yet, the end users of iiNet's service haven't suffered anything and hence aren't party to the case.
Gah (Score:1)
How much money have they wasted on this... how much money has it got them back?
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AFACT hasn't waisted any of their own money. All of it, so far, has been tax payer funded. If they loose this, the MAFIAA will have to pay.
AFACT is desperate and has too much money (Score:3, Interesting)
huh wha (Score:2)
I thought Australia was already AFACT's bitch. Maybe I'm just being profetic, er whatever it is called.