AFACT: Judge wrong on BitTorrent

AFACT: Judge wrong on BitTorrent

Summary: The Australian Federation Against Copyright Theft has today slammed Federal Court Judge Dennis Cowdroy's understanding of copyright law in its appeal against his decision in iiNet's favour.


The Australian Federation Against Copyright Theft has today slammed Federal Court Judge Dennis Cowdroy's understanding of copyright law in its appeal against his decision in iiNet's favour.

AFACT's nine-page notice of appeal, penned by its solicitor, Gilbert and Tobin partner, Michael Williams, outlines key areas of copyright law it believes Justice Cowdroy got wrong. It has objected to Cowdroy's treatment of authorisation, infringement by iiNet users, safe harbour provisions and evidence heard during the trial.

At its heart is Cowdroy's application of the term authorisation under copyright law, and his decision that BitTorrent was the means by which infringements had occurred.

AFACT will contest that BitTorrent was a "necessary precondition" to infringement, but that iiNet's carriage service was the key. The argument flows on to iiNet's power to prevent breaches occurring, according to the notice.

While iiNet was powerless to stop BitTorrent users, as Justice Cowdroy had found, AFACT contends it did have the power to prevent breaches that occurred over its network by suspending or terminating customer accounts.

The federation has also objected to Cowdroy not seeing AFACT's infringement notifications to iiNet as sufficient grounds for its knowledge that breaches were occurring, as well as Cowdroy's finding that iiNet's inaction did not amount to sanctioning its customer's copyright breaches.

Cowdroy's assessment of BitTorrent's manner of operation was also viewed as incorrect, according to AFACT's notice. Cowdroy was wrong, it said, in finding that a file accessed several times by third-party users amounted to a single, continuous act. AFACT contends that each time a computer was connected to the internet, thereby making a file available, this amounted to a breach.

"The primary judge erred by failing to act on his own findings, which ought to have led to a conclusion that there were numerous and repeated acts of infringement by users of iiNet's internet services," the notice states.

AFACT has slammed the decision as making a mockery of Australia's Safe Harbour rules, which it imported to Australia under a 2006 US Fair Trade Agreement.

The federation's appeal will be heard by three Federal Court judges at some stage this year. If AFACT wins that appeal the matter may be appealed by iiNet at the High Court.

Justice Cowdroy will not be involved in the appeal process; however, he will concurrently be hearing AFACT's challenge to his decision on costs.

Topics: Telcos, Government AU, Legal, Piracy

Liam Tung

About Liam Tung

Liam Tung is an Australian business technology journalist living a few too many Swedish miles north of Stockholm for his liking. He gained a bachelors degree in economics and arts (cultural studies) at Sydney's Macquarie University, but hacked (without Norse or malicious code for that matter) his way into a career as an enterprise tech, security and telecommunications journalist with ZDNet Australia. These days Liam is a full time freelance technology journalist who writes for several publications.

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.


Log in or register to join the discussion
  • The "key"

    "AFACT will contest that BitTorrent was a "necessary precondition" to infringement, but that iiNet's carriage service was the key"

    You might be able to argue that, if iiNet were the only ISP in Australia. But if iiNet disconnect a user, the user is just going to sign up with someone else and keep infringing.
  • Appeal is useless

    Under the law the result for AFACT will be the same as before a loss, waste of court time and lots of money. They can not hold an innocent ISP liable for piracy. It is like holding the Transport Authority liable because you have a car accident because they provided the road. It is abondantly clear that providing internet access is not encouraging piracy. The ISP did not encourage piracy nor did they provide the programs such as UTorrent. Afact should go after the pirates themselves.
  • Lets Rally Up

    Using BitTorrent Clients is not illegal what some users choose to download with it is, iiNet have not done anything wrong here.. BitTorrent is a legitimate source to get many things eg: Linux Releases.

    AFACT: Listen UP AFACT and whom you are representing.. AUSTRALIAN PEOPLE NEED TO BOYCOTT THESE BULLIES we need stop buying their material and stop watching Channel 7.. The main reason people are copying this material is because they are not allowing you to obtain them at a fair price when they are released legitimately.
  • AFACT is missing the point

    The point of this is that iiNet shouldn't have to "disconnect" a user. This means they are watching the users and that should not be the responsibility of the ISP. If AFACT wants to do this right, they need to create a body with the Australian Police to track down pirates and charge them through the courts, not get the ISP to do it!

    ISP's are carriers of information just like Snail mail and telephones.

    Monitoring and disconnection of the two above services requires a court order.

    Why should the internet be different... It shouldn't we comunicate, handle money etc on the internet why should somone be able to monitor that and second to tat why should someone be able to dissconnect that service on no more than a lligation based of VERY shoddy evidance.

    ^^ Thats what AFACT WANTS!!!!.

    P.s and the stupid thing is it would not be a problem if these publishing companies acctully woke up and started using the internet to distribute thier content quickly and cheaply but NO

    They want you to do it theier way.

    My answer GTFO. I have boycotted all TV, Music and movies that are not aquired through Bit Torrent.

    Was going to see Avatar at the movies (Thank you pirate bay)

    Was Going to see daybreakers at the movies (thank you pirate bay)

    Was going to buy all Dexter TV series on DVD (Thank you pirate bay)
  • iiNet is just a toll road

    Lets take the road analogy a little further here.

    iiNet is like a toll road operator. Asking iiNet or any carrier to police copyright infringing internet traffic is like asking toll road operators to block all vehicles carrying stolen goods from their roadways - impractical and intrusive.

    AFACT are just looking for a soft target instead of doing their job and going after both the torrent operators (the warehouses where the stolen goods were stored) and the pirates (the truck drivers).
  • AFACT Nazis

    Not only are the "bad guys" arseholes - aka Corporate Moron America from the US and A;

    - They are greedy stupid arseholes...

    e.g. Microsoft sold Win 7. Online and in box (pretend figure) it went for say $200.

    They sold it in Australia for $400 - and they stopped people in Australia from buying from the US and A; by ----- get this:

    1. Blocking their IP address; and

    2. If they did things like use a proxy server, they blocked the sale via shipping address.

    With the DRM and the Microsoft dirty antics and the rigging of the hardware etc., etc., etc....

    Well I bought a laptop a few years back - fine; plays DVD's too.

    But here is where I did all my research on this:

    These pricks in AFACT and Co., use staged releases; First at the movies in the US and A, and then selectively into SOME of the other regions.

    OK that means globally about 85% of what is released - is not released in Australia and does not make it to Australia.

    After the cinemas, then come the DVD rentals, and then wayyyy down the track it comes on TV.

    AFACT rigs the prices of DVD's and CD's etc., so that consumers in Australia pay substantially more for their media, that people do in the USA etc.,

    AFACT and Co opposed the use of Parallel importing, where consumers could buy their own material oversease, at a substantial saving to buying the same media in the shops here.

    Then we have the region encoding.

    These pricks have it stitched up to only release the proprietary firmware that reads the disk content, to the manufactures who make things like DVD players etc...

    I mean THIS by and of it's self is a HUGE long running sore to the consumer - remember Sony installing root kits on ones hard drive? etc., etc., etc...

    So with the region encoding, these pricks make it so that one I install a region encoded disk, the unit "locks" to that region. When I insert a disk from the US and A, it registers that the disk is from a different region. As soon as I say stick in another Aussi disk, that registers as the THIRD change, and then when I insert a disk from the UK, the drive region LOCKS it's self to only playing disks from the UK.

    No more Aussi disks, no more USA disks etc.....

    So that is only ONE small example of how these pricks meddle with everything.

    The issue goes on that in Australia we only get about 15% of the global media content. What is not is neither released here nor distributed here.

    As far as how these organisations control what is shown here.....

    Australian media such as the TV stations and the radio stations and the press, are some of the shittiest in the world. And they are controlled for the most part by the members of AFACT.

    We suffer enormous advertisment loading - and after 11 pm - we have the equivalent of porn spam adds, in 5 minute blocks, for five minutes, every five minutes half the night - dumping crap which is basically "go masturbate over videos of strippers and lesbian sex on your mobile phone" - at only $5.99 a minute.

    I mean I love women!!!! but these adds are too much - because it's the same adds over and over and over - night after night after night... and they have long since ceased to be tittilating and are now purely annoying.

    We get "fans of assorted series" and the series have random and unannounced schedule changes, we get stuff that is mostly 2 or so years after the current stuff is screening in the USA, and frequently the series are taken off air mid season and replaced with other programs or old episodes etc....

    Most of the Free to Air TV in Australia is basically shit.

    And I do digress about the issue of free to air. Assume that one watches 20 hours per week - that is about 10 hours of "show" and 10 hours of adds - if I was earning a wage for those 10 hours of adds, vs. watching adds on TV., then I would be way in front.

    TV and the adds, actually cost me enormous amounts of loss through the unproductive and wasteful use of my time.

    Could I go hire a movie if I was inclined.... yeah - with the "new releases" still being classified as "new releases" 2 years after it was seen at the cinema at $5 a night, vs the not new releases that are of movies like "The Terminator" that came out 20 years ago for $2 weekly.

    As far as music goes - I am not into the latest flavour of the month, being shoved down my neck., and I also kind of like much of all that has been produced - spanning the last 100 years or so.

    Even if we limit the material to say the last 30 years - almost NONE of it is available in the record shops, very little of it is available online - but people do share it via P2P...

    Again being musically inclined - when buying "proper" sheet music - most of it is very poorly written - probably by dope smoking jerks on minimum wages., and for the larger part no one from their managers to the musicians ever checks the quality or the accuracy of the work.

    So we get wrong wording, bar chords to fill in for 2 guitars playing complex note sequences and riffs... and the copyright nazis went after sites who hosted people's interpretations of the music, in tab notation... with them listening to the recording and writing down in "guitar code" (tabs) how they thought the actual riff went, where guitar 1 and guitar 2 cut in and out, and each guitars chord and fingering sequence and techniques.

    I thought that was getting to the point of beating up people and arresting them for whistling tunes when walking the dog.

    Again AFACT and it's greedy, lazy and stupid "corporate moron" constituents, do everything they can to obstruct, control and gouge the consumer with every device and means possible., but they deliberately do nothing to make the content affordable or available.

    Do I like them or respect them? No.

    Will I ever buy from them again or support them?

    Not when they are rigging their own copyright laws to suit themselves - so they can keep on plastering licensed versions of Mickey Mouse on every school bag, lunch box and pencil case for the next 500 years...

    These companies are rotten and corrupt.

    And now they have consolidated themselves into about 4 or 5 global multinationals who own and control the movie and music studios, the TV stations and the print media.

    In Australia - the news is almost identical on all networks.... and it's stupid corporate moron based news.... except for the haircuts of the news readers., it would be hard to tell them apart.

    Things of relevance like this; such as the oil states in the middle east are investing heavily in solar and renewables.... well that has never been reported by the stupids in Australia - what makes our news is pointless and irrelevant shit like, "A man caught fucking his dog was sentenced today" or some other bullshit - while real matters of great import go ignored and disregarded.

    Or the idiot political sensationalising and point scoring etc...

    The media in Australia is run by idiots.

    AFACT are the front face of the global conglomerates, trying to lock everyone via vertical integration - into their product lines.

    They want power and control over everyone using everything.

    And they don't like it when people say "I am not a commodity on a balance sheet - designed to sit here and make revenue for you".

    The more I see just how corrupt these buiness's are - are what cheek they have to try it on, the more I am inclined to have subversive inclinations.....

    Like "Turn off, Don't Watch and Don't Buy" and support free press and unsigned artists and the local productions by real people - in community cinemas and halls.....

    Learn to read, write and play your own music..

    And dump the spoon fed nazi bullshit from AFACT and it's constituent members.
  • very revealing

    So does AFART think that arrogance and contempt for reality is an achievable substitute for jurisprudence?
  • Well said mate

    We got rid of hitler in the 1940's, now he is back in the totalitarian ways of media companies.

    News, music, movie, TV and whatever else media companies are run by a bunch of colluding, money hungry, over zealous wankers who just want to control what we see, read, watch and ultimately think.

    They have taken a leaf from Stalin's book and it's disgusting. One only needs to watch ACA or TodayTonight. Stories about some bogan flinging dog sh*t over their backfence. Who cares! They are neglecting to bring us real news.

    Movies & TV shows the same deal. What happened to rather than telling us what we want, ask us what we want? If we were given the choice for cheap, fast, reliable and logical access to content the vast majority of us would pay for it.

    I am still appalled at $35 for a new DVD. WTF! It was cheaper to go to the cinema to see it. If we can download a movie for $1, everyone would do it. It's better to make $1 than $0 and their market would be millions of times bigger and significantly reducing cost of product delivery.

    AFACT and other media firms need to pull their heads from their collective arses and embrace what people have achieved with the internet and make use of it. If they make a tidy profit from it without pissing people off, everyone is happy.

    AFACT go get farked and grow a brain.
  • AFACT - a bull-crap org...

    ...what AFACT (there's a mistake if ever I saw one just in the name) has completely misconstrued is that iiNet really didn't have the authority vested in it to circumvent these users. In reality iiNet may well have faced litigation if they had done as AFACT believes they should so...damned if they do, damned if they don't...

    But why would iiNet be spying on what the users are downloading? Wouldn't that in itself be deemed an untrustworthy action & for the purposes of various inappropriate voyeurism?

    So AFACT is in fact just looking for someone to blame when the error is global & lets screw some little ISP (perhaps not little in OZ but certainly in the global view). Make AFACT pay a huge debt for playing games with the justice system (a system I don't wholly aspire to). May they serve as a warning to other manipulators of the digital world who basically use the system by holding up others who can't compete with them on a financial basis. Make them pay.
  • Absolutely!

    Yes indeed
  • These kinds of appeals...

    ...should come with a huge financial loss if the original litigious organisation is found in error, exactly as before. Make them think twice before deciding on an appeal & perhaps a very good basis for the appeal process to be taken at all.