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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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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)

"If you look at the last five years, if you look at what major innovations have occurred in computing technology, every single one of them came from AMD. Not a single innovation came from Intel." -- AMD CEO Hector Ruiz in 2007

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