Print 27 comment(s) - last by Lerianis.. on Mar 4 at 10:52 PM

While AFACT was unsuccessful in its lawsuit against ISP iiNet, the ruling has paved the way for the film industry to make ISPs accountable for warning and punishing users who download unauthorized films

An appeal case between major film studios and an Australian ISP regarding internet piracy has resulted in a dismissal in the Federal Court. However, despite this loss for the film industry, the judgment provided clues as to how these studios can improve copyright infringement notices sent to ISPs, thus encouraging internet providers to take action against users participating in unauthorized downloads.  

The film industry claims that it has lost $1.37 billion to piracy over a year's time, and that one in every three Australians has illegally downloaded movies from the internet. The industry blamed Australian ISP iiNet, and made a move by asking the Australian Federation Against Copyright Theft (AFACT) to represent them publicly and in a court case against the Internet provider.

Before the lawsuit began, AFACT used a firm called DtecNet to monitor iiNet users who were allegedly downloading films from the Internet using the BitTorrent protocol. AFACT then sent the IP addresses of those involved in Internet piracy to iiNet along with copyright infringement notices. The letter's AFACT sent to iiNet said that the internet provider could contact the users individually and warn them against further copyright infringement, or sanctions could be imposed on the user. AFACT did not specify what these sanctions would be, but according to Troy Gurnett, senior associate at law firm Middletons who specializes in intellectual property, AFACT may have ultimately wanted ISPs to terminate or suspend user accounts if they did not comply. AFACT noted that they never stated, "termination is reasonable or unreasonable." 

In response to the copyright infringement notices, iiNet believed it should not have to accept "the responsibility of judge and jury in order to impose arbitrary and disproportionate penalties purely on the allegations of AFACT." AFACT then took iiNet to court.  

Last week, the Federal Court dismissed the appeal case in a 2:1 ruling determining that iiNet could not be held liable for its users acts of copyright infringement. According to John Fairbairn, litigation lawyer and specialist in intellectual property and technology law at Clayton Utz, iiNet was not obligated to interfere with user activities. It was acting as an ISP should, providing internet services, and did not have to go beyond those duties based on AFACT's allegations. 

But the ruling didn't end there. The judgment also provided clues as to how AFACT could improve copyright infringement notices, which could lead to ISPs being held responsible for user activity by sending warnings to users who participate in unauthorized downloads 

"As it stands, [the judgment] opens the way for copyright owners to improve the quality of the notices they provide to ISPs and also potentially put in place a regime where they'll agree to meet [the ISPs] costs [to act on the notices]," said Fairbairn. "And if they meet those requirements, an ISP may then come under an obligation to either send warning notices to those users or to terminate the accounts of users that are repeat infringers." 

Three judges were involved in the case, where lead judge Justice Arthur Emmett stated that AFACT would need "unequivocal and cogent evidence of the infringement and some form of undertaking to reimburse the ISP for the costs of taking those steps and to indemnify it in the event termination of that user's account was unlawful.

"Mere assertion by an entity such as AFACT, with whatever particulars of the assertion that may be provided, would not, of itself, constitute unequivocal and cogent evidence of the doing of acts of infringement," said Justice Arthur Emmett. "Information as to the way in which the material supporting the allegations was derived, that was adequate to enable iiNet to verify the accuracy of the allegations, may suffice. Verification on oath as to the precise steps that were adopted in order to obtain or discern the relevant information may suffice but may not be necessary."

The ruling could lead to ISPs such as iiNet, Optus or Telstra being obligated to warn Australian customers of copyright infringements performed on their connection, and could possibly lead to termination of service as a result.  

"If AFACT or anyone else puts forward a workable proposal, we are of course prepared to examine it," said iiNet in a statement. 

Comments     Threshold

This article is over a month old, voting and posting comments is disabled

Enough of this...
By quiksilvr on 3/3/2011 10:57:32 AM , Rating: 5
Just put every movie/show in existence on Netflix in HD for $10 a month and be done with it. Piracy gone. Can we move on now?

RE: Enough of this...
By Brandon Hill on 3/3/11, Rating: -1
RE: Enough of this...
By MrFord on 3/3/2011 11:16:19 AM , Rating: 3
More than trying to catch and sue every one of them.
No solution will solve the problem 100%, but at least that's a good alternative.

The big difference with NetFlix streaming: You don't have to wait for anything. If it's available, you can watch the movie now. not unlike when you download it. No waiting for the DVD to come or going back and forth to the rental store.

Everything wasn't all perfect and magical before digital piracy appeared. People were copying movies from VHS. There was just no way to know before that.

RE: Enough of this...
By MozeeToby on 3/3/2011 11:19:16 AM , Rating: 3
Such a solution would get every customer who would have ever paid you for the work anyway, which is really the best result you can hope for. There will always be people who are never willing to spend a dime on entertainment, arguing that those people are costing you sales is kind of a contradiction in terms.

RE: Enough of this...
By Lerianis on 3/4/2011 10:50:20 PM , Rating: 2
Nail, meet head with your post.

The fact is that most pirates either:

1. Don't have enough money to buy the original thing in question anyway without impinging on 'mandatory' stuff (food, clothing, shelter).

2. Don't see the value in the stuff in question so they 'pirate' it because it is worth a play but not a buy.

RE: Enough of this...
By Kurz on 3/3/2011 12:10:27 PM , Rating: 2
There is no theft in Digital piracy.

RE: Enough of this...
By acer905 on 3/3/2011 12:24:37 PM , Rating: 5
This is all a question of semantics. People get all up in a fuss if someone downloads an episode of TV from a torrent site, but don't care if the person has a DVR in their living room and records the same show as it airs. In both situations, you can avoid commercials, watch the show whenever you want, and let as many people come over and watch it as you want.

So then, what is different about having your neighbor DVR something for you, and then watching it vs downloading an episode. If you have cable or satellite, odds are you could eventually watch any episode of any show ever popular. And you have paid for every single one of them.

Essentially, if you have a television service provider, you are paying them for all the content that they offer. DVR's come in a variety of sizes, and many with large capacities for storing hundreds of hours of television are provided by the service providers. In this sense, buy signing up for cable or satellite you are essentially paying them for the ability to watch all of their content at any time, store it for any length of time you wish, and in many cases view it on any television.

So then, what is different about recording your own television shows, movies, etc on the DVR that DirecTV gives you, or downloading the show that someone else recorded? Either way you have unlimited access to it, you don't have to watch any commercials, you can view it on as many televisions as you wish, and you can keep it for as long as you have room to store it.

If a person pays for cable or satellite TV, the only thing they can pirate are DVD rips and CD rips. If it was recorded off of a broadcast, its already theirs to watch. And, when it comes to local television networks, like CBS & NBC, anything that they have ever or will ever show on their network is free for all.

Either there should not be DVR's allowed, or people should be allowed to download as much broadcast media that they have access to without a computer.

RE: Enough of this...
By 3DoubleD on 3/3/2011 1:35:11 PM , Rating: 2

RE: Enough of this...
By mindless1 on 3/4/2011 4:24:59 AM , Rating: 2
Excuse my ignorance but how often does the MPAA/etc sue people for pirating content that has already aired?

I feel they are concerned about the advertising losses, but otherwise it is more a case of having to take a stance that you support the entirety of the law you are using to nail those who pirate or share the other content that isn't free/paid/whatever for everyone who has CATV and a DVR.

What is the REAL difference? Antiquated copyright laws make one illegal and not the other. You're thinking "similar" or "right and wrong" instead of "we let these laws stand so either way it is illegal".

RE: Enough of this...
By vapore0n on 3/4/2011 8:23:23 AM , Rating: 2
The difference is that the person that posted the episode online does not have rebroadcast permissions by the owner of the content.

Same issue with taking DVD that you own, and going to the local theater and playing it for everyone else to see for free. Technically its illegal to do that.

In there is where the problem lies. The owner wants to control how the content gets delivered, and most of the time is such that they can benefit from it.

RE: Enough of this...
By Netscorer on 3/3/2011 12:33:03 PM , Rating: 2
There are two basic types of pirates: those who would never pay for the services in the first place and those who pirate out of convenience.
There is no loss of monetary revenue to the studios from the first type - people in that category usually have limited resources at their disposal in the first place and pirating for them is a way to achieve societal equalizer with the well-to-do folks. This is why, for example, the piracy is so prevalent in Eastern Europe and Asia. Many there could never afford to pay full price for a software license or the new Hollywood blockbuster but they feel (and justifiably so) that it is unfair for them to be treated as second-class citizen just because their labor is not valued as much as in the Western world.
As for the second group - give them a convenient and fair business model and they will sign up. The success of iTunes and Netflix proves that majority of people would gladly pay if product is easy to get and price is fare.
So please stop spewing all that propaganda that studios and publishers are throwing at us.

RE: Enough of this...
By HrilL on 3/3/2011 12:55:59 PM , Rating: 2
That may or may not be true. At this point in time their is no competing service that is better then free. Movies you pay for a full of ad's you can't skip FBI warnings you can't skip. You're paying for something that has less value than the free product. Netflix offers a great service that is very simple and pretty much competes with free but they don't have new releases for streaming and the streaming library isn't that great. I'm not at all in favor of people pirating but I believe the Movie industry which keeps having the highest box office profits year after year needs to figure out a better business model then DVD and Blueray sales. You also can't claim each download as a lost sale because in most cases those people were NEVER going to pay for it in the first place.

RE: Enough of this...
By bah12 on 3/3/2011 3:32:56 PM , Rating: 2
those people were NEVER going to pay for it in the first place.
Then they should NEVER get to experience it. Problem is how to stop them without hurting those of us who are willing to pay. I agree the model is flawed, but it is EXTREMELY short sighted to think that if no copyright protections where in place that there would be no impact on sales. There is a rather growing fallacy on the internet that there are only 2 types of pirates (those that would pay, and those that would never have paid). There is in fact a 3rd that won't pay as long as the free stuff is easy enough to access, and the risks of doing so are low.

It is very naive to think that if tomorrow 100% of all copyright laws and protections disappeared, that piracy would not grow. Again I really do think that existing protections hurt the legit buyer more than the pirate, but be real people. If there were no consequences, and it was easily accessible, I'd be hard pressed to continue my altruistic attitude of buying content. I own 700+ DVD/Blu-rays, I have the means to keep buying them. But COME ON if I knew tomorrow that I could just go online and get them free with no consequence, it would be very difficult for my moral side (theft is wrong) to win out against my greed side (everyone else is doing it and they can't prosecute me). I'm sorry but it is idiotic to think otherwise.

RE: Enough of this...
By Uncle on 3/3/2011 9:12:22 PM , Rating: 2
No, the Isp's lowering caps will stop it.

RE: Enough of this...
By mindless1 on 3/4/2011 4:19:09 AM , Rating: 2
Yes, I do think it will stop the majority of pirates in all but the poorer countries. Those that do get "as much as they can grab" end up spending a significant amount of time and storage space, bandwidth, discs and players or HTPC, etc.

$10 /month is not that much more than an hour's worth of work at minimum wage. Even a (thief) is going to weigh whether the crime makes sense unless we're talking about drug addicts jonesing for a score.

Also, I vaguely recall that some studies have suggested that those who pirate things are actually one of the larger consumers of entertainment content, they may actually be spending no more @ $10/mo. than they already are!

On the other hand, I do not feel $10/mo for unlimited or even high bandwidth limited streaming is going to look like an attractive enough venture for *all* content holders to jump onboard with the fear of abandoning their present profit models. They aren't doing bad financially, they're just whining about spilled milk, that they could have even more profit.

RE: Enough of this...
By TSS on 3/4/2011 11:05:40 AM , Rating: 2
So are the movie studio's. I don't see your point.

Mine would be 30+ year movies still costing as much on blu-ray as on VHS, CD, DVD, and seeing it in the theatre. And lets just throw digital downloads in there for good measure. Did i mention they will cost this amount for 90 years before becomming public domain? these are movies that cleared production costs by far just at the box office, 30-40 years ago....

RE: Enough of this...
By 85 on 3/3/2011 1:33:20 PM , Rating: 2
You will need a valid U.S. mailing address to sign up for Netflix. Also, you will only be able to watch instantly if you are in the 50 United States or Washington, D.C. It looks like you are outside the United States. If this is incorrect, please contact your Internet provider for help. We are sorry for any inconvenience.

I rest my case... i love netflix & i love hulu but right now its not possible to get either of them in the UK without a proxy. When they do finally make it to the UK, I can garentee its not foing to be $10. I pay £145.50 per year in TV TAX because i have a color TV.

By formulav8 on 3/3/2011 12:17:52 PM , Rating: 2
How is it that these movie and music industries has so much power? They literally can get info and evidence that law enforcement wouldn't be able to get without jumping through many hoops.

For example WarnerBros is policing Youtube like it owns the place. You can see many videos removed and accounts closed because WarnerBros 'claimed' the user was violating their copyright. I'm sure me posting an episode of Scooby Doo is really stepping on Hanna Barbera's bottom line. You can be sure that WarnerBros policing has cost Much more than what they would have lost for someone posting a free episode of Scooby Doo...

RE: Honestly
By Solandri on 3/3/2011 2:45:21 PM , Rating: 2
I'm no friend of the movie studios, and agree that they've gotten way too much power to bypass the judicial system. But posting an entire episode is clearly a copyright violation. It does not matter whether you think they won't lose any money, or even if they don't lose any money. They own the copyright on it, so they get to decide, not you. If they're stupid about it they will go out of business, but it's their right to choose to be stupid, not yours.

If you want to post stuff to YouTube, don't take other people's work and post it there. Create some videos of your own and post it there. I don't say this to insult you. I say this because I believe this is the future of media. Instead of viewing things created by a few people but shared by everyone (TV), we're going to be able to view things created by anyone in the world and shared by everyone. Even this site is a reflection of that. 20 years ago, the only way what I wrote could be read by so many people was if I wrote a letter to the editor of a newspaper and they decided it was worth printing. Today, I just write, and people choose to read it - there's no newspaper or editor sitting in the middle deciding what can and cannot be heard.

That's the way to stick it to the movie studios - fight back by competing with them. Make your own videos to steal audience from them. Hasten their downfall to irrelevance. And best of all, it's completely legal.

RE: Honestly
By Lerianis on 3/4/2011 10:52:28 PM , Rating: 2
Solandri, when most of these things are already available for free in numerous other fashions that are LEGAL... perhaps it's just time for these companies to upload their offerings to Youtube themselves and get in on the 'ad dollars' on Youtube.

RE: Honestly
By someguy123 on 3/3/2011 3:31:31 PM , Rating: 2

Just Boycott the MAFIAA
By gorehound on 3/3/2011 5:03:11 PM , Rating: 2
do not buy mafiaa stuff new
buy only used physical media
stop these pigs from getting into your wallet

RE: Just Boycott the MAFIAA
By mindless1 on 3/4/2011 4:31:56 AM , Rating: 2
Buying used media makes it more cost effective for others to buy new media, it still contributes to the entertainment mafia.

What people need to do instead is recognize that if they enjoy the content they should pay a little, then learn to socialize a bit more. Why buy and watch 1000 movies alone or with only a couple other people when you can have a gang of friends over to watch, each member buying only their fraction of the total # the gang watches. That ends up more enjoyable too.

Human User
By kake on 3/4/2011 2:31:44 AM , Rating: 2
We have satellite. Everything except HBO.

We watch the Game Show Network, The Food Network, and The Cooking Channel. My wife watches LMN occasionally when she's bored for the hideous movies they play.

I watch local channels over the air as DirecTV are aholes and HD is _so_ much better when watching Jeopardy! it's not even funny.

Everything else, even down to my wife's obsession with American Idol we get via torrent. I'm not aware there is anything we download we couldn't watching on satellite.


1. The sat box is okay to navigate and all, but there is no besides to a digital file on the server to serve off to the laptop, HTPC, etc. So ease of distributed watching (have you tried hooking up a laptop to a satellite box via 802.11? Yeah, it's just not possible).

2. I honestly have absolutely no idea when any of the shows I like are actually on the air. Nor do I intend to find out. Yes, a DVR would probably do that sort of thing for me, but utorrent's very nice RSS feeder is in many ways superior (especially when it comes to Top Gear, and BBCA's week+ lag).

3. Quality. SD channels on DirecTV are so bad it's not even funny. Yes, most things worth watching are in HD, but it's a law of averages. The average being, average torrent > average DirecTV.

note: please correct me if I'm wrong, but to my eyes, don't the Dish SD channels look better than the DirecTV SD channels?

RE: Human User
By kake on 3/4/2011 3:06:15 AM , Rating: 2
Unrelated note:

'"We don't know how to make a $500 computer that's not a piece of junk." -- Apple CEO Steve Jobs'

This is the 'clever' page bottom at the time of my post.

The simple answer is yes, they do know how to make a $500 computer that's not a piece of junk, but their profit margin would be nill. And who the hell (including Dell) makes nill on a shell?

Apple makes amazing pieces of hardware that have impressive external grace combined with clever engineering (even if the internals are not quite cutting edge). I don't own any Apple products, but that's just because I'm too cheap and DIYish. My in-laws and their kin have a good quantity of the computing fruit, and I always enjoy the sagacity it affords when I use them.

Besides, they look bloody nice.

(typed on an i3-530 based micro-ITX system running W7 64 while people related to me are watching We're No Angels off it on the plasma)

bypassing the justice system?
By kattanna on 3/3/2011 11:03:28 AM , Rating: 3
what i dont get, is how the movie industry has managed to be able to bypass the justice system with their threats.

if they find evidence of someone pirating, that evidence needs to be taken to the justice system who can then issue a subpoena to the ISP for records and authorities handle investigation.

but it seems they think they can demand other companies to give out their private data on their customers without proper court orders.

Bunch of non-Aussies....
By croc on 3/4/2011 4:00:43 AM , Rating: 1
... commenting on what they do not know. AUS is the closest of any country in the OECD to a totally unregulated free market, and what do we get? Higher food prices, electricity prices, bandwidth prices...

But we do get good health care, and good education... (Speaking of education, Tiffany, your use of apostrophes needs a refresher course.)

"I mean, if you wanna break down someone's door, why don't you start with AT&T, for God sakes? They make your amazing phone unusable as a phone!" -- Jon Stewart on Apple and the iPhone

Most Popular ArticlesSmartphone Screen Protectors – What To Look For
September 21, 2016, 9:33 AM
UN Meeting to Tackle Antimicrobial Resistance
September 21, 2016, 9:52 AM
Walmart may get "Robot Shopping Carts?"
September 17, 2016, 6:01 AM
5 Cases for iPhone 7 and 7 iPhone Plus
September 18, 2016, 10:08 AM
Update: Problem-Free Galaxy Note7s CPSC Approved
September 22, 2016, 5:30 AM

Copyright 2016 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki