AFACT v iiNet – An appeal with no hope or something to be encouraged?

Australia - Could the AFACT v ISP appeal be a good thing?

I love Australia, beautiful country, people and landscape.  It’s nice to write about a place which next year I hope to visit.

It’s being reported on Torrentfreak that AFACT (the Australian version of what us Brits have – FACT) is appealing a previous decision in a copyright infringement case against iiNet.

I would recommend you read the Torrentfreak article, but in a nut-shell it goes something like this.  AFACT wants to take the ISP to court due to allowing its users to download copyrighted material, on the grounds that despite providing evidence to the ISP, the ISP did nothing to prevent it’s users from doing it.  In the UK (and inappropriately applied to Criminal Law) it would be something akin to “aiding and abetting”…sort of.

After the case had finished though, AFACT did not get the ruling they had hoped for and hence now they are appealing the decision.

As I say, Torrentfreak (as usual) covers this very well and I’m going to consider it from a slightly different angle.  I believe that AFACT v ISP should be encouraged by the file-sharing community who believe the “early settlement” letters are wrong.  Why?  Let me explain.

Look at your ISP for a minute.  I think its fair to say they make a lot of money out of yours and everyone else’s subscription.  They offer faster and faster packages…you can get the speed you want, for a price.  If we assume that the user is targeted in the main for the copyright infringement issues they are alleged to have committed, do you really think the ISP cares what you download or share?  I’d say no, as long as they get their monthly subscription fee and don’t get any nasty law suits because of it.   You only have to look towards the adverts ISP’s produce, they certainly don’t mention anything about possible copyright infringement and of the ones I’ve seen there is a certain undertone in them which sells you their packages on what you can download.

So whilst the ISP’s are sitting counting the cash, it’s the end-user who is receiving letters from ACS:Law and co.  Why should they care? And if people think some ISP’s reluctance to hold back details of their customers from those investigating copyright infringement, I believe you should think again.  I think the reluctance to divulge user details is more to do with retaining existing customers and convincing new one’s that they are the “good guys”

No ISP  is above the law.  A court order WILL FORCE your ISP to reveal your details, no matter how “good” the intentions of your ISP.

I said in an article a while ago that I believed copyright infringement should be the responsibility of the ISP, not the end-user.  The knock-on effect of this would be that ISP’s would self regulate an “evil” which I would tolerate instead of the situation we have now where the apparent “fill your boots” attitude by the ISP’s has the end-user suffering at the hands of potential court cases.

If we look at the “real world”, a landlord/lady of a Pub is pretty much responsible for the conduct of his/her pub.  Should things continue out of hand and the “trouble makers” be allowed to drink in it, then they may well find that their license is revoked or simply not renewed.  The same could be applied to ISP’s.

Maybe if AFACT are successful, it could set a precedent, which whilst not ideal, would stop the end-user relieving worrying letters through the post and make the ISP themselves take responsibility? – Food for thought there.

The "comic" found on the AFACT website puts me in mind of the same type of propaganda found during WWII. What do you think?

AFACT – Is that “a fact”?

I could not finish this article without posting some observations in regards to their site.  It’s really great stuff and in particular its “comic” aimed at children in regards to piracy is entertaining (if not somewhat disturbing) reading.

The “comic” and I use that term very loosely as it puts me very much in mind of the WWII propaganda aimed at children, when one side was trying to demonize the other.

The comic tells the story of two lads who decide to download Transformers from a P2P tracker, what happens next is a bizarre combination of spy satellites and malware infections that have allegedly come from a movie file even before its downloaded.

The childs fear of the parents is played on too when it shows their father becoming a victim of this “malicious software” as a result of their downloading.  Moving on, it then transports the children into a bad LSD trip type experience where they are chased by malware only to be saved by the hero’s who shows them the error of their ways and saves the day.   Awful stuff and as far as I’m concerned the age group that this is aimed at would be far too savvy to fall for this.  Whilst they may miss its intended target, it is great “computer baffled” parent fodder and whilst the kids will dismiss it, I think parents who maybe didn’t grow up with computing being the norm, will swallow it hook & line.

Perhaps the silliest thing on the AFACT page is not the comic, but the headline:

ACADEMIC RESEARCH FINDS VAST MAJORITY OF BITTORRENT TRAFFIC ILLEGAL

which if we look past the “illegal” (and say infringes copyright instead) doesn’t come as a shock to anyone.  One look at Pirate Bay would tell you that.  Someone commissioned research to come up with that ground-breaking result?  Maybe that comic wasn’t so silly, maybe AFACT are clueless?  Go on, try it yourself.  With the exception of the few trackers that cover Linux distro’s or Creative Commons work, I’d guess a majority of copyright infringing material is the conclusion you will come to in seconds.  People champion the BT protocol as a great tech as it is, we all know what the vast majority of people use it for.

AFACT also have a nice little video for other users who don’t buy the possibility of malware being present in a movie file and infecting your machine even before you have finished downloading it.  The video features Roy Billings and he wants to tell you about the harm of piracy:

its not a victim less crime, its people like me

At which point (after a quick cringe) I switched it off.  If AFACT wished to put a point across about piracy making victims of those in the industry, the successful career (and the fact he’s reported to have landed a role in the new Narnia film) would say Mr Billing is not the person to make it.

Readers of this site will know that I have had a strong anti-piracy stance for many years.  Its tot like this (and the actions of ACS:Law et al) which have made me question that view.  Thats a different article though and ACS:Law will be followed up very shortly with one all of their own.

So we leave this piece with AFACT in the process of appeal.  Copyright infringing file sharers supporting the ISP, ISP’s collecting monthly payment from you and a big question mark over how far an ISP would go to protect your details if a court order was served on it.

I’ll let you make your own mind up, reminding you that your ISP is in business to make money.

Finally, to end on a happier note,   lets remind ourselves of the attempt at propaganda against piracy in the UK, which sort of backfired and turned into a cult classic:

Goblin – bytes4free@googlemail.com

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8 Comments Add yours

  1. You says:

    I think you mean ‘precedent’, not ‘president’. Further, how are ISPs meant to self-regulate? By installing filters to prevent you from accessing certain sites, or limiting downloading? Is that really their job? Your bar analogy is a touch misleading – the bar owner has supervision, knowledge and control (from Moorehouse), whereas an ISP does not. The letters are worrying, but it is the responsibility of the user to avoid them (by either pirating in an intelligent manner, or not pirating). Further, an ISP should not be held liable for authorising copyright infringement to help users or for any reason – they should be held liable if the fulfill the statutory and common law criteria, which they most clearly do not.

  2. openbytes says:

    Quote “I think you mean ‘precedent’, not ‘president’”

    Thank you, I should hire you as a proof reader….Blame the WordPress spell checker….suitably changed.

    Quote “how are ISPs meant to self-regulate? By installing filters to prevent you from accessing certain sites, or limiting downloading? ”

    Well by monitoring their traffic and taking responsibility for their customers (much like the pub landlord example) after all the ISP’s are making money from your subscriptions.

    Quote “Is that really their job?”

    One could argue if they are to entice new customers with faster access then yes. If I loan my car to my friend who doesn’t have a license then I may commit an offence (permitting) if I know he/she has no license…..- food for thought there.

    Quote “knowledge and control (from Moorehouse), whereas an ISP does not.”

    Really, so then what is the point of an ISP having a EULA/TOS? If there is no responsibility on the part of the ISP, why don’t they just let it be a free for all. I think if your ISP is like mine, they actually specify what you should and shouldn’t do, yet do nothing to enforce it. Personal responsibility on behalf of the ISP I argue, whilst not ideal, is certainly better than speculative invoicing on mass to many people who may be innocent.

    Quote “but it is the responsibility of the user to avoid them”

    What like the Murdochs when they received one? Or what about the innocent people who have proved they have no involvement?

    Quote “Further, an ISP should not be held liable for authorising copyright infringement to help users or for any reason”

    If the Pirate Bay can be held responsible for infringing links, then I say its wholly reasonable on a civil “balance of probabilities” that an ISP once informed about one of its customers could be liable if it fails to act. Surely by continuing to allow an infringement they are then drawing similarity to the offence of “permitting” whereby you know unlawful/illegal activity is taking place, yet you allow it.

    It could be that the customer concerned had an open wifi and knew nothing of the infringement, the ISP in question here doesn’t seem to have done anything about that either. Maybe thats where some responsibility could be given to the ISP?

    Goblin

  3. You says:

    Hmmm, interesting to talk about. I think choice of language is important here though, although Adelaide Corporation held permitting to be equatable to authorisation (perhaps wrongly), I think any judicial inquiry into whether authorisation will require something more than mere permission. As Justice Cowrdy so rightly focused on in the original iiNet case, providing the means for infringement is necessarily different from helping. A passive ISP is merely providing an internet connection. The question of direct knowledge of infringement may change things, but then what is an ISP supposed to do once they have the knowledge? Moreover, would responsibility on an ISP merely meant they became the policeman that rights’ holders are now – sending out letters to everyone just to cover their ass, if you’ll excuse my language. If they are to be rights’ holders policeman, who will pay for their work? Putting aside questions of whether they should be responsible, I just think that imposing liability on ISPs will not work to change the fundamental problem, just put a different person in the role of enforcer.

    1. openbytes says:

      It’s a very good point. I think the thing I am trying to draw out from this article is whilst speculative inviting is rife, the ISP seems to be sitting back and counting the cash, its here to make money and I think if truth be known it could care less what users do providing it doesn’t come back on them in the meantime enticing more users to its service with faster and faster speeds.

  4. R says:

    I think you, like AFACT, mistake AFACT for a legal entity who has the rights to demand someone else terminate a customers service. What you neglected to mention is that its an allegation from AFACT, one they cant be bothered going through a court to prove. Im going to allege you downloaded an illegal file. Lets see if you’d like your internet cut off now because someone who doesnt have the legal right to, demanded your ISP do it.
    AFACT simply want the ISP to foot the bill to manage their copyright for them. That is not the ISPs responsibility. AFACT and the studios dont want to do it themselves because it will cost them, and they will be seen as the bad guys. Instead they want the ISP to cop the cost, and the fall-out. The financial burden, all of it, will end up as the ISPs, leading to higher costs for internet access.

    1. openbytes says:

      I’m sorry, I don’t and if you had read my coverage on this blog over the last two years you would see I repeatedly make the point that FACT is a subscription club so to speak and is not part of any government body. I make a large point about FACT seeming to have the ear of the Police over here in the UK. If you had read my previous articles you would have known that. Furthermore if you had read this article properly you would have seen that my point was that whilst ISPs being held responsible is not ideal, it is certainly preferable to the speculative invoicing that sees many innocent end users on the receiving end of a settlement letter.

  5. The study on torrents that you’ve quoted has been thoroughly debunked, I’d suggest that you update the article to reflect this.

    Which isn’t to say that there aren’t torrents out there of copyright infringing materials, there are. But you cannot trust anything that AFACT says, just like you can’t trust anything that ASCAP says, etc. etc.

    1. openbytes says:

      Hi. I’d agree fully that stats provided by those with an agenda are going to show results favorable to that point of view, but even the article you link suggests that the majority of torrents do infringe. Having said that, I wouldn’t seek to put an exact figure on it.

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