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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 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.


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