'Considerable errors' in iiNet ruling: AFACT

'Considerable errors' in iiNet ruling: AFACT

Summary: At the close of the first day of the Australian Federation Against Copyright Theft's (AFACT) appeal against the iiNet copyright trial decision earlier this year, AFACT barrister David Catterns criticised the way Justice Cowdroy had gone about ruling the case.

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At the close of the first day of the Australian Federation Against Copyright Theft's (AFACT) appeal against the iiNet copyright trial decision earlier this year, AFACT barrister David Catterns criticised the way Justice Cowdroy had gone about ruling the case.

At the conclusion of the original lawsuit AFACT brought against iiNet, Justice Cowdroy firstly ruled that the internet service provider (ISP) had not authorised its users' infringements; secondly, it could not be expected to act to prevent the breaches under the Copyright Act; and finally, that iiNet had a policy in place to deal with customers infringing on copyright, but did not need to apply it in this case.

Catterns said that the order Cowdroy applied in this ruling was incorrect. He stated that "the appropriate way to deal with it" would have been to first identify whether iiNet was a facilitator in supplying the means (the internet connection) for its users to breach copyright, then determine how this sits in the section of the Copyright Act in regards to iiNet's ability to prevent the breaches.

AFACT's barrister then said that he believed the judge should have looked at whether iiNet had knowledge of these breaches, but did not act to prevent them, and whether that — when all was taken into account — constituted authorising copyright infringement.

The barrister said he believed there had been a "considerable number of errors" by Justice Cowdroy in the ruling. He said this included a "blind alley" judgement where Cowdroy ruled that iiNet was no more responsible than suppliers of electricity and stated that AFACT should have gone after the makers of the BitTorrent software.

Catterns closed the day's proceedings by stating that the Copyright Act is now "three times bigger than it was in 1968". He said that AFACT was not seeking to extend the Copyright Act further but believed that if the law had been properly applied to the case "it should have shown authorisation".

In the original case, iiNet argued that it was simply providing a service to its customers and had no power to act on infringements without a court order. iiNet has stated that to do so would be a breach of its customers' privacy.

Lawyers for iiNet will lay out their side of the argument later this week.

Topics: Legal, Government AU, Telcos

About

Armed with a degree in Computer Science and a Masters in Journalism, Josh keeps a close eye on the telecommunications industry, the National Broadband Network, and all the goings on in government IT.

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5 comments
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  • Next, they'll have to accuse the owner of the physical connection (presumably Telstra) as a "facilitator".

    If I use "rude words" on the phone, I am the guilty party for misusing the Telstra service. Telstra is not liable for that misuse.

    If I use MSWord to write a ransom-note, is Microsoft going to be guilty of "facilitating" the activity?

    The purpose of BitTorrent and other file-share programs is to spread the bandwidth of file transfers from single server/client pipelines.

    If Authors of file share products are to be considered guilty for the material that is transferred across those shares, then Microsoft has to be found equally liable for every piece of damage suffered as a result of a virus transmitted through its lack of security.
    Treknology
  • I suppose the AFACT will start piracy proceedings against qantas because they enablesd me to fly here to Australi with US regioned DVD's that aren't avalible here. Or that PAN-AM should be charged with terrorism cause a terriorist flew on there airline. What cods wollop AFACT that is why we think so little of your industry we will look the other way cause your petty much like your puppet Conroy. Keep up the fight iiNet your status only is enhanced with your good business demenor.

    AFACTS when will you start suing us or the DVD burner industry cause I backup my extensive library of SCFI movies to blank DVD's? That's illegal in the US, and we have a free trade agreement with the US?
    bunny_au
  • An argument that implicates a carrier to take action against customers based solely upon "allegation" and not "finding" is flawed in law. There are many parties who together as an industry facilitate the transfer of data, be it Telstra or Microsoft or BitTorrent. It is bizzare to pick on the ISP who by virtue of the privacy act may not intercept or interpret your private data, much as the post office can't systematically read you mail. AFACT has only the status of a complainent to an ISP, and rather than pursue individuals with court orders (as has failed the public opinion test in the US), they seek to move down the chain and accuse ISPs who in their opinion "could have", "should have" ... even where privacy law prevents them from acting, and ties them to an evidence based legal process against individuals, which AFACT is unwilling to pursue.
    ptrrssll
  • Saying the ISP was a "facilitator in supplying the means (the internet connection) for its users to breach copyright" - can be ridiculed because it would be hard to establish, dare I say nigh on impossible, to show this as the primary 'reason' that an internet connection was supplied. In fact, from my memory, iiNet has never offered breaching copyright as a feature of its' ISP offerings.
    anonymous
  • The RIAA and MPAA even scam thir own.

    AFACT - they are so crooked even their bogus PR campaign is a lie.

    http://torrentfreak.com/tech-news-sites-tout-misleading-bittorrent-piracy-study-100724/ [torrentfreak.com]

    http://www.techdirt.com/articles/20100708/02510310122.shtml [techdirt.com]

    http://www.latimes.com/business/la-fi-ct-disney-20100708,0,4051564.story [latimes.com]
    Jahm Mittt