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  (Source: counterfeitchic.com)
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. 



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RE: Enough of this...
By Brandon Hill (blog) on 3/3/2011 11:03:31 AM , Rating: -1
You actually think that will stop pirates? Pirates seem to think they are entitled to as much as they can grab without getting caught.


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
Amen


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
quote:
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....


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