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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 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.


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