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Landmark Ruling Gives Australian ISPs Safe Harbor

samzenpus posted more than 4 years ago | from the pick-on-someone-your-own-size dept.

The Courts 252

omnibit writes "Today, the Federal Court of Australia handed down its ruling in favor of the country's third largest ISP, iiNet. The case was backed by some of the largest media companies, including 20th Century Fox and Warner Bros. They accused iiNet of approving piracy by ignoring thousands of infringement notices. Justice Cowdroy said that the 'mere provision of access to internet is not the means to infringement' and 'copyright infringement occurred as result of use of BitTorrent, not the Internet... iiNet has no control over BitTorrent system and [is] not responsible for BitTorrent system.' Many Internet providers had been concerned that an adverse ruling would have forced themselves to police Internet traffic and comply with the demands of copyright owners without any legislative or judicial oversight."

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252 comments

Suck it, AFACT (5, Funny)

Anonymous Coward | more than 4 years ago | (#31017314)

Suck it long and hard.

Headline should read... (5, Funny)

DigiJunkie (448588) | more than 4 years ago | (#31017318)

Landmark Legal Decision - Law and Common Sense Align

Re:Headline should read... (3, Insightful)

Wowsers (1151731) | more than 4 years ago | (#31017430)

Don't expect a sudden rash of common sense to be replicated around the world by judges.

I'm sure there are plenty of judges that will give the "correct" verdict for the media companies for an appropriate "compensation package."

Re:Headline should read... (2, Insightful)

poetmatt (793785) | more than 4 years ago | (#31017772)

really? You know, most judges worldwide do tend to read into the decisions made by other countries and cite them, as there are many smart law folks. Whether they disagree or not sure, but simple jurisprudence does exist.

Re:Headline should read... (1)

causality (777677) | more than 4 years ago | (#31018176)

really? You know, most judges worldwide do tend to read into the decisions made by other countries and cite them, as there are many smart law folks. Whether they disagree or not sure, but simple jurisprudence does exist.

In a way, that bothers me. It's not the job of an ISP to censor content or to micromanage its users to appease a business interest (copyright) that is orthogonal to their own. That's the truth whether or not a judge in a foreign country thinks so. Sure, in this case the precedent set was a good and sane one, but next time it might not be.

Re:Headline should read... (5, Informative)

Anonymous Coward | more than 4 years ago | (#31017548)

You can read the decision for yourself here. [austlii.edu.au]

Prepare for the appeals! (3, Insightful)

SpeedyDX (1014595) | more than 4 years ago | (#31017320)

This case is probably not over yet.

Re:Prepare for the appeals! (2, Insightful)

MrShaggy (683273) | more than 4 years ago | (#31017344)

Its the supreme court after all. I think that says it all.

maybe ACTA will be nexT?

Re:Prepare for the appeals! (4, Informative)

Jason Pollock (45537) | more than 4 years ago | (#31017382)

Um, it's Australia, and the Federal Court in Australia.

Australia doesn't _have_ a Supreme Court, they have a High Court.

So, no, this probably isn't over yet.

Re:Prepare for the appeals! (5, Informative)

Anonymous Coward | more than 4 years ago | (#31017482)

Australia doesn't _have_ a Supreme Court, they have a High Court.

We have eight (8) Supreme Courts actually. But yes, you are correct this is the first instance case before a single Judge in the Federal Court. Appeal would usually lie to the Full Court (of the FedCrt) and then to the High Court of Australia.

Re:Prepare for the appeals! (0)

Anonymous Coward | more than 4 years ago | (#31017588)

I know you all speak English, but does 'Supreme' mean something different in Australia? I mean, if someone says that this burger is of "supreme" quality, you can come back and say that yours is of 'High" quality and trump him?

Re:Prepare for the appeals! (1)

fabs64 (657132) | more than 4 years ago | (#31017640)

The Federal govt doesn't have supreme courts, the states do. As far as state law is concerned they *are* the "Supreme" court for that state.

Re:Prepare for the appeals! (0)

Anonymous Coward | more than 4 years ago | (#31017654)

nah, mate, my true blue burger is better than your supreme one anyday.

But the highest court is the Grouse Court of Oz

Re:Prepare for the appeals! (1, Insightful)

Anonymous Coward | more than 4 years ago | (#31017718)

You are wrong. The Fucken' Grouse Court of Oz is higher.

Re:Prepare for the appeals! (1)

zblack_eagle (971870) | more than 4 years ago | (#31017662)

Sure. Just like I have district and magistrates burgers which are obviously of lesser quality than supreme burgers.

Re:Prepare for the appeals! (4, Funny)

MichaelSmith (789609) | more than 4 years ago | (#31017728)

Sure. Just like I have district and magistrates burgers which are obviously of lesser quality than supreme burgers.

And in France its called the Court Royale

Re:Prepare for the appeals! (1)

Shark (78448) | more than 4 years ago | (#31017966)

... with cheese!

Re:Prepare for the appeals! (1)

Noodlenoggin (1295699) | more than 4 years ago | (#31018138)

Does that come with a $5 shake?

Re:Prepare for the appeals! (5, Informative)

Anonymous Coward | more than 4 years ago | (#31017682)

I know you all speak English, but does 'Supreme' mean something different in Australia?

Each state and territory as a Supreme Crt, which is the highest court for that state and territory. The federal court system is separate and deals with federal law (eg. copyright law). The highest court in Australia is the High Court of Australia, to which one can appeal from the state Supreme Crts or from the Federal Crt.

Does that make it any clearer?

Re:Prepare for the appeals! (1)

fabs64 (657132) | more than 4 years ago | (#31017776)

Good explanation, just one addendum: The High Court really only deals with interpretation of the constitution, as it holds sway over both the states and the fed.

Re:Prepare for the appeals! (5, Informative)

Anonymous Coward | more than 4 years ago | (#31017856)

The High Court really only deals with interpretation of the constitution

While this is true of the German Bundesverfassungsgericht, it is completely false in regard to the High Court of Australia. And yes, IAAAL.

Any point of law, whether it arises out if the Constitution or not, can be decided by HCA.

Re:Prepare for the appeals! (1)

WeirdJohn (1170585) | more than 4 years ago | (#31017956)

Can someone mod up this AC's posts? I assume that he's AC for professional reasons. It's good to have clear, correct interpretation of the law here in Oz for those who don't live in God's own country.

Re:Prepare for the appeals! (1, Informative)

Anonymous Coward | more than 4 years ago | (#31018126)

"Bundesverfassungsgericht"

I'd just like to say...damn, that's a mouthful.

Re:Prepare for the appeals! (1)

cujo_1111 (627504) | more than 4 years ago | (#31018320)

That's what your mum said :)

No each state and territory does not a Supreme Crt (1, Informative)

Anonymous Coward | more than 4 years ago | (#31018442)

The gollowing 5 states do not have a supreme court

Ashmore and Cartier Islands
Australian Antarctic Territory
Coral Sea Islands Territory
Heard Island and McDonald Islands
Jervis Bay Territory

Special award goes to
Cocos (Keeling) Islands, with a population of 628 people they have found a need for their own supreme court. This may just create the must supreme court justices per head of population anywhere in the world.

Re:Prepare for the appeals! (1)

starbugs (1670420) | more than 4 years ago | (#31017848)

I know you all speak English, but does 'Supreme' mean something different in Australia?

I'm quite indifferent to the word 'supreme'.
What I want to know is if the word 'High' means something different?

--
Sue: It's okay.
            He's Australian.
Fran: Maybe I'd better go there someday.

Re:Prepare for the appeals! (0)

Anonymous Coward | more than 4 years ago | (#31018134)

... Appeal would usually *lie* to the Full Court

More true than you could imagine

Re:Prepare for the appeals! (2, Informative)

throbber (72924) | more than 4 years ago | (#31017478)

There is still the High Court. The Supreme Courts in Australia only have jurisdiction over State matters.

Re:Prepare for the appeals! (4, Informative)

Enter the Shoggoth (1362079) | more than 4 years ago | (#31017524)

Its the supreme court after all. I think that says it all.

maybe ACTA will be nexT?

Sorry, no it wasn't the supreme court. If you are an non-Australian you will find a more complete explanation here [wikipedia.org] . If on the other hand you are a fellow Aussie and you think that we have a single supreme court I respectfully suggest that you have watched way too many hours of imported American TV shows. Stop it!

The case was held in the federal court - each state within Australia has it's own court system the highest court within each state is the state's own supreme court. As this seems to have been a case with respect to federal law it was brought before the federal court.

In any case there is an avenue for appeal. Leave may be sought for the case to be heard by the High Court which has appellate jurisdiction over the federal court and all states supreme court. This is not overly likely however as the high court rarely accepts matters and the majority of its sittings are to determine constitutional matters.

The next step in this process for AFACT is more likely to lobby the idiots in Canberra for new laws.

Re:Prepare for the appeals! (0)

Anonymous Coward | more than 4 years ago | (#31018318)

If on the other hand you are a fellow Aussie and you think that we have a single supreme court I respectfully suggest that you have watched way too many hours of imported American TV shows. Stop it!

Which they probably downloaded..

Re:Prepare for the appeals! (0)

Anonymous Coward | more than 4 years ago | (#31018326)

Its the supreme court after all. I think that says it all.

It is the Federal Court, not the Supreme Court. Appeals from the Federal Court can be made to the High Court.

SECOND POST !! (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#31017322)

Getting there.

Wow (0)

zobier (585066) | more than 4 years ago | (#31017328)

At least we can do something right down here!

Thank you Mr. Cowdroy!

Re:Wow (0)

Anonymous Coward | more than 4 years ago | (#31017384)

Thank you Mr. Cowdroy!

That would be Justice Cowdroy!.

Re:Wow (2, Funny)

tomhudson (43916) | more than 4 years ago | (#31017822)

Funny if his first name was Neil ...

Justice Cowdroy, Neil.

Re:Wow (1, Offtopic)

timmarhy (659436) | more than 4 years ago | (#31017400)

This had NOTHING to do with steven conroy.

i'm very suprised actually. even though iinet's arguement was solid - why should they spend money and lose customers policing someone elses copyrights. usually the music and film industry weasles find a way to win these things.

it is too early to celebrate though, there will be an appeal no doubt where the music industry try get a judge more inline with their thinking.

Re:Wow (1)

dangitman (862676) | more than 4 years ago | (#31017420)

This had NOTHING to do with steven conroy.

Who said that it did?

It was awesome how thoroughly they won too (5, Informative)

adamkennedy (121032) | more than 4 years ago | (#31017356)

What I liked about this ruling was just how much they won it.

The judge said that Safe Harbour provisions did apply to the ISP... but they weren't needed because they only applied if the ISP explicit approved that user activity (which they do not)... and any infringement notices from the studios didn't need to be sent to consumers due to the Privacy Act (iiNet sends all infringement notices to the police instead)... and in any case the sending of infringement notices and subsequent banning etc was not considered a valid copyright prevention mechanism.

So yeah, they wiped the floor with them.

Re:It was awesome how thoroughly they won too (5, Interesting)

Incisa (1737082) | more than 4 years ago | (#31017406)

The salient quote from the judge - "the law recognises no positive obligation on any person to protect the copyright of another".

Re:It was awesome how thoroughly they won too (2, Insightful)

Areyoukiddingme (1289470) | more than 4 years ago | (#31017534)

One supposes he meant "private citizen" when he said "person".

And if that holds up on appeal, you can bet there will be a scramble to change it.

Re:It was awesome how thoroughly they won too (0)

murraystorm (1737106) | more than 4 years ago | (#31017736)

One supposes he meant "private citizen" when he said "person".

And if that holds up on appeal, you can bet there will be a scramble to change it.

This was a hearing in the federal court there is no further avenue of appeal. The only higher body is the high court which is mainly concerned with constitutional law etc which this case has no avenue too. The good guys have won this battle but the war goes on.

Re:It was awesome how thoroughly they won too (1)

Capsaicin (412918) | more than 4 years ago | (#31017950)

This was a hearing in the federal court there is no further avenue of appeal.

The Full Court, the High Court? This was a decision at first instance, appeals are always available.

The only higher body is the high court which is mainly concerned with constitutional law etc which this case has no avenue too.

The High Court does deal with issues of constitutional law, but not exclusively (or even primarily) so. Furthermore the law under consideration arises out of the powers granted to parliament under section 51 (placita xviii & xxix) [austlii.edu.au] of the Constitution.

Whether or not this is appealed will depend on an assessment of how solid the judgment is.

Re:It was awesome how thoroughly they won too (2, Insightful)

Capsaicin (412918) | more than 4 years ago | (#31017802)

One supposes he meant "private citizen" when he said "person".

One is in error. At law a corporation is a 'person.' Indeed the personality of a corporation is a sine qua non of the corporate form (the other being the limited liability of that person). Contrast this with a partnership, which is several persons, or a non-incorporated company, which is a vehicle through with the person(s) who own(s) it operate.

What you call a "private citizen" is conventionally referred to as a 'natural person.'

Re:It was awesome how thoroughly they won too (4, Interesting)

halcyon1234 (834388) | more than 4 years ago | (#31018448)

The salient quote from the judge - "the law recognises no positive obligation on any person to protect the copyright of another".

It's almost like the judge-- reads? {mindreel}

"There has grown in the minds of certain groups in this country the idea that just because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with guaranteeing such a profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is supported by neither statute or common law. Neither corporations or individuals have the right to come into court and ask that the clock of history be stopped, or turned back."

- Heinlein, Life Line, 1939

Good news, but (5, Informative)

Karsaroth (1064806) | more than 4 years ago | (#31017358)

we still have a proposed Internet Filter, no R18+ rating for video games, and a South Australian government that passed a law saying that every person commenting about the election online must provide their real name and postcode. We have a long way to go yet.

Re:Good news, but (4, Insightful)

Capsaicin (412918) | more than 4 years ago | (#31017412)

we still have a proposed Internet Filter, no R18+ rating for video games, and a South Australian government that passed a law saying that every person commenting about the election online must provide their real name and postcode.

You missed something else we still have. The separation of the administrative/legislative and the judicial arms of government.

Re:Good news, but (1)

spudda (1201863) | more than 4 years ago | (#31017680)

that may be true, but if the Executive branch of Government don't like what the Judicial branch has done then they will push through new legislation through the legislative branch of Government to overturn it. But it sounds better to allow people to believe we have proper separation of powers.

Re:Good news, but (1)

Capsaicin (412918) | more than 4 years ago | (#31018004)

that may be true, but if the Executive branch of Government don't like what the Judicial branch has done then they will push through new legislation through the legislative branch of Government to overturn it. But it sounds better to allow people to believe we have proper separation of powers.

Dude, what you've just described is the separation of powers! The legislature (representing WeThePeople(tm)) gets to correct the course the law takes (as implemented by judges seeking a quasi-mathematical formal solution to legal problems with which they are presented, "cough, cough"). Needless to say, we in Australia don't have "proper" separation of powers because the administrative and judicial powers are combined.

My point was that comparing a curial decision (this case) to legislation the government has on the table (all of the things listed by GP) is comparing apples to oranges.

Doh! (1)

Capsaicin (412918) | more than 4 years ago | (#31018066)

Needless to say, we in Australia don't have "proper" separation of powers because the administrative and judicial powers are combined.

I beg your pardon. The administrative and legislative powers are combined!

Re:Good news, but (3, Interesting)

Ralish (775196) | more than 4 years ago | (#31018084)

You missed something else we still have. The separation of the administrative/legislative and the judicial arms of government.

The judicial arm is effectively separate, but the separation of the executive (administrative) and legislative arms of government isn't necessarily a good idea; look to America for some solid examples why. Which isn't to say it doesn't have its benefits, but I don't think they outweigh the cons. In particular, I don't think it in anyway increases government accountability, but it certainly does decrease government effectiveness, and an ineffective government is bad no matter where you sit on the political spectrum, as it impedes a government mandated by the people to implement policy from being able to do so.

Re:Good news, but (1)

Capsaicin (412918) | more than 4 years ago | (#31018146)

The judicial arm is effectively separate, but the separation of the executive (administrative) and legislative arms of government isn't necessarily a good idea; look to America for some solid examples why.

I agree.

Perhaps I was being to obtuse. My point was to tell the GP, "You comparing this judgment, which, in theory, is supposed to be about interpreting the law as it is (not as the learned J might wish it to be), the the legislation the government wants to introduce which, again only in theory, reflects a policy we get to vote about."

Re:Good news, but (1, Informative)

Anonymous Coward | more than 4 years ago | (#31017418)

Don't forget the issues with water sports and female ejaculation [sexparty.org.au] ...

Re:Good news, but (4, Informative)

Anonymous Coward | more than 4 years ago | (#31017432)

Actually, the South Australian law requiring real names and postcodes on all Internet comments about the election has already been overturned.

So now they can twitter "off to vote today" from their phones without getting RSI.

Re:Good news, but (2, Interesting)

StrahdVZ (1027852) | more than 4 years ago | (#31017704)

Actually it has NOT been overturned yet. The South Australian Attorney-General declared that he would scrap the laws AFTER the upcoming election. Now this is assuming that he and his party will still be in power after the election (a big assumption indeed).

If he isn't then I'll bet my chops that the Conservatives who are then in power will do everything they can to retain the draconian law.

Re:Good news, but (4, Insightful)

bmo (77928) | more than 4 years ago | (#31017758)

What got me was that he basically said the only way to get it scrapped was if he was re-elected.

That's some brass balls.

From here in the US, while we've had our problems, it certainly seems like you guys have forgotten the old pledge "We swear by the Southern Cross to stand truly by each other and fight to defend our rights and liberties."

--
BMO

Re:Good news, but (1, Informative)

Anonymous Coward | more than 4 years ago | (#31017720)

Unless something has happened between yesterday and today it wasn't overturned as such, the actual wording was that the state government would try to overturn it after the state election. Typical political doublespeak.

Re:Good news, but (1)

StrahdVZ (1027852) | more than 4 years ago | (#31017726)

My apologies, factors have changed overnight. He will indeed attempt to repeal the laws immediately.

I guess I was just having a hard time believing that common sense could prevail twice in one day....

Re:Good news, but (5, Informative)

bcg (322392) | more than 4 years ago | (#31017532)

"SOUTH Australian Attorney-General Michael Atkinson late last night backed down on online media censorship laws.

After stoking a fight with the media less than two months from a state election, Mr Atkinson said the laws stripping anonymity from media blogs would be repealed after the March 20 poll.

"From the feedback we've received through AdelaideNow, the blogging generation believes that the law supported by all MPs and all political parties is unduly restrictive. I have listened," Mr Atkinson said in statement released to the website AdelaideNow.

"I will immediately after the election move to repeal the law retrospectively."

Mr Atkinson said the law would not be enforced for comments posted during the upcoming election campaign, even though it was technically applicable."


http://www.theaustralian.com.au/news/nation/sa-attorney-general-backs-down-on-political-blogging/story-e6frg6nf-1225826154732 [theaustralian.com.au]

Re:Good news, but (5, Informative)

Madsy (1049678) | more than 4 years ago | (#31017836)

we still have a proposed Internet Filter, no R18+ rating for video games, and a South Australian government that passed a law saying that every person commenting about the election online must provide their real name and postcode. We have a long way to go yet.

And banned A-cup breasts from mainstream pornography. Reason? Think-of-the-children mentality again. http://www.sankakucomplex.com/2010/01/28/australia-bans-small-breasts-as-child-pornography/ [sankakucomplex.com] I found that both amusing and shocking. It's not about children's safety anymore, but pushing moral values and acting as thought-police.

Re:Good news, but (1)

TapeCutter (624760) | more than 4 years ago | (#31018008)

"South Australian government that passed a law saying that every person commenting about the election online must provide their real name and postcode"

Yes they did, and then they were promtly forced to drop it.

Re:Good news, but (1)

Wizarth (785742) | more than 4 years ago | (#31018076)

Possibly because the law didn't say what the Attorney General said it did.

http://www.efa.org.au/2010/02/02/sa-electoral-amendments-and-anonymity-online/ [efa.org.au]

From the article:

It also covers material on ‘radio or television or broadcast on the Internet’. ‘Broadcast’, at least as it is defined in Commonwealth legislation, covers audio or visual transmissions but not text and static images (see s 6, Broadcasting Services Act 1992 (Cth)). So this requirement would cover radio and television stations and probably podcasters as well.

It is important to note that this legislation does not require each commentator on a website to be named. It requires the publisher of the site (or a responsible person) to be named.

Sudden outbreak of... (5, Insightful)

Pushpabon (1351749) | more than 4 years ago | (#31017362)

...common sense? But it's Austfailia! This can't be true! Somehow they'll find a way to overturn this I know it.

Re:Sudden outbreak of... (5, Funny)

sconeu (64226) | more than 4 years ago | (#31017554)

No need to turn it over. It's Australia. It's already upside-down.

Re:Sudden outbreak of... (1, Interesting)

ThinkOfaNumber (836424) | more than 4 years ago | (#31017610)

Hey, I live in Australia and therefore I resemble that remark...

sudden outbreak of common sense. (1)

Sir_Lewk (967686) | more than 4 years ago | (#31017380)

This is really a great step in the right direction for Australia! Time to break out the suddenoutbreakofcommonsense tag!

Re:sudden outbreak of common sense. (1)

fremean (1189177) | more than 4 years ago | (#31018140)

I hope this commonsense stuff is contagious...

sigh (2, Insightful)

wizardforce (1005805) | more than 4 years ago | (#31017402)

"copyright infringement occurred as result of use of BitTorrent, not the Internet...iiNet has no control over BitTorrent system and [is] not responsible for BitTorrent system."

The important part is what isn't said. The ruling didn't say that there was no obligation to police a certain part of the net for copyright violations, just that the ISP wasn't responsible for BitTorrent and thus wasn't obligated to police that part of the net.

Re:sigh (5, Insightful)

mabinogi (74033) | more than 4 years ago | (#31017460)

The important part is what isn't said. The ruling didn't say that there was no obligation to police a certain part of the net for copyright violations, just that the ISP wasn't responsible for BitTorrent and thus wasn't obligated to police that part of the net.

so, "the law recognises no positive obligation on any person to protect the copyright of another" doesn't meet your definition of that?

Re:sigh (1)

wizardforce (1005805) | more than 4 years ago | (#31017746)

sigh... right you are. I suppose that given Australia's history with copyright law I really expected something sinister somewhere.

Re:sigh (1)

GumphMaster (772693) | more than 4 years ago | (#31018142)

"the law recognises no positive obligation on any person to protect the copyright of another"

Curious, then, the amount of activity that the Australian Customs Service and police services puts into detecting "illegal" movies on behalf of private entities claiming to be copyright holders. Effort also goes into the related area of protecting trademarks for private entities (e.g. Louis Vuiton) from "counterfeit" goods at public expense. Clearly law enforcement officers are not "any person", which might come as a shock to some of them.

Re:sigh (0)

Anonymous Coward | more than 4 years ago | (#31017982)

"copyright infringement occurred as result of use of BitTorrent, not the Internet...iiNet has no control over BitTorrent system and [is] not responsible for BitTorrent system."

The important part is what isn't said. The ruling didn't say that there was no obligation to police a certain part of the net for copyright violations, just that the ISP wasn't responsible for BitTorrent and thus wasn't obligated to police that part of the net.

i would also add that blaming on bittorrent isn't a true statement either. bittorrent is the plumbing, not an illegal technology.

Now we'll see what happens (1)

dowlingw (557752) | more than 4 years ago | (#31017440)

It will be interesting to see if the studios take up a campaign of harassment lawsuits against individuals in AU. At least ISPs won't be foisted with another short-sighted compliance issue - now all us Aussies need to do is avoid Stephen Conroy's mandatory internet filtering debacle.... In either case, this is a great thing for industry: well done iiNet!

Re:Now we'll see what happens (1, Informative)

Anonymous Coward | more than 4 years ago | (#31017714)

Para 635 of the reasons for judgement:
(1) The Court finds that primary infringement has been made out. The applicants have proven that the iiNet users ‘made available online’, ‘electronically transmitted’ and made copies of the identified films.

So given that primary infringement is established in this case by "iiNet users", the next but more difficult step would be the identification of a liable person who either committed infringement or is liable for infringement through their inaction (say the parents who own the internet account used for the infringement). Given that the Joe Doe IP discovery technique used in the US is not available, this could be hard to do. Primary infringement by iiNet users was admitted by iiNet, but the applicant does not have appeared to demonstrate infringement by user(s) of a given IP at a particular time outside of iiNet's admission.

Para 619 makes an interesting observation:
The Court finds that the respondent’s notification that copyright infringement may lead to termination of subscriber accounts (extracted above at [612]) put the iiNet users on sufficient notice that the respondent had a policy in relation to repeat copyright infringement, and that Mr Malone’s understanding of the factors necessary to take action under that policy is sufficient to constitute a repeat infringer policy for the purposes of condition 1 of item 1 of s 116AH(1).
Earlier, the court noted that iiNet's willingness to disconnect a repeat offender on order of the court, admission of infringement by the user, or where the court finds that the user infringed was enough ingredients to form a repeat infringer policy - a more than one strikes policy - but mere allegation of infringement would not be a "strike".

I think we are still some way from big content being able to go after individual users - and in Australia they will generally have costs awarded against them if they lose - like they have to pay iiNet's costs in this case.

statement from the losing party (4, Funny)

Swampash (1131503) | more than 4 years ago | (#31017516)

Speaking on behalf of the Australian and US film companies that launched the action, Australian Federation Against Copyright Theft executive director, Neil Gane, said he was disappointed by the Court's decision.

"Today's decision is a setback for the 50,000 Australians employed in the film industry," he said.

"But we believe this decision was based on a technical finding centred on the court's interpretation of the how infringements occur and the ISPs ability to control them.

"We are confident that the government does not intend a policy outcome where rampant copyright infringement is allowed to continue unaddressed and unabated via the iiNet network.

"We will now take the time to review the decision before making further comment on next steps," he said.

Translation:

1. Dey tuk er jeb! Won't someone think of the jeb?

2. Never should have allowed testimony about how the Internet works.

3. OK, fuck the courts, we'll just buy a few politicians. We'll tell 'em it's about protecting Australian jobs and about protecting de widdle chiwdwen.

4. Need to work out which politicians to buy.

Re:statement from the losing party (1)

Sam Ritchie (842532) | more than 4 years ago | (#31017642)

4. Need to work out which politicians to buy.

That's easy. Communications Minister Stephen Conroy is already sympathetic [zdnet.com.au] to their cause and should be available for a bargain price.

Re:Sentator Conroy (1)

Freaky Spook (811861) | more than 4 years ago | (#31017762)

That's what I'm most worried about coming into the next Federal Election.

He can tack a 1/2 baked policy somewhere into his list of election promises and targets like he did with the Content Filtering, which became mandatory after he won the election. It wouldn't surprise me if we see Copyright protections included into the Filtering legislation to force ISP's to work for free for big media.

Conroy has proved time and time again he has no idea what the internet actually is, or does and supports stronger enforcement of copyright without any recourse for the consumer. He is one man that needs to be heavily targeted by the Greens, The Pirate Party and the Liberal Party to lose his Senate Seat.

Re:Sentator Conroy (2, Insightful)

MichaelSmith (789609) | more than 4 years ago | (#31017914)

No. Conroy is a tool. Getting rid of him won't change the underlying problem.

Re:Sentator Conroy (1)

Sam Ritchie (842532) | more than 4 years ago | (#31017940)

"It's an election promise! Therefore, normal rules of legislative diligence do not apply!"

Unfortunately Stephen Conroy is at the top of the senate ticket in Victoria and even a targeted campaign has practically no chance of unseating him.

Error in title... (1, Informative)

Anonymous Coward | more than 4 years ago | (#31017550)

Reports here this morning explicitly state that the Safe Harbour provisions were not invoked:

'Justice Cowdory agreed and said that, while iiNet was entitled to protection under the Safe Harbour provisions, there was no need for iiNet to take advantage of this as he did not find it authorised its users' copyright infringement.'

Statement in full from the losing party (4, Funny)

David Gerard (12369) | more than 4 years ago | (#31017582)

Thirty-four film companies representing the Australian and US film industries today expressed their disappointment that the Federal Court found that iiNet was not using orbital mind control lasers [newstechnica.com] to encourage copyright infringements by its customers on its network.

Despite findings of copyright infringement by iiNet customers, pirate flags in their front yards and downloaded cars in their driveways, iiNet did not authorise the acts of its customers, merely sitting back and watching the tens of dollars rolling in to feather their own nests at the expense of the poor beleaguered major record companies and film studios.

Australian Federation Against Copyright Theft executive director, Neil Gane, said he was disappointed by the Court’s decision. "Today’s decision is a setback for the 50,000 Australians employed in the film industry, who work hard to send money to America as fast as possible. But we believe there's something not quoite roight about this ruling — it was based on a mere technical loophole centred on the court's interpretation of what the law technically says in actual words and original intention, rather than what it should say.

"We are confident that the government does not intend a policy outcome where zombie hordes of drooling open source copyright terrorists led by the evil genius Michael Malone are allowed to continue feasting upon the flesh of the living via the iiNet network.

"We will now take the time to review the decision before seeing if we can bribe enough federal politicians to get a law more to our liking."

Re:Statement in full from the losing party (0)

Anonymous Coward | more than 4 years ago | (#31018428)

Haha, got marked as Informative. Guess the mods know the truth when they see it.

Timeline of case + full ruling (4, Informative)

angry tapir (1463043) | more than 4 years ago | (#31017596)

Here's a timeline of the case. [goodgearguide.com.au] Also the full ruling [austlii.edu.au] has been posted online.

Favourite quote: (3, Insightful)

fabs64 (657132) | more than 4 years ago | (#31017616)

"the law recognises no positive obligation on any person to protect the copyright of another," - Justice Cowdroy

Ah, reasonable, rational, and direct. Love it.

The future is still undetermined (3, Interesting)

spudda (1201863) | more than 4 years ago | (#31017748)

The Issue was decided by a single judge, which means the likelihood of appeal to the full bench of the Federal court and the high court after that is 100%. I think this is a good day for Australian ISPs. And despite the whinging from AFACT it does not protect pirates since the copyright holders have had the mechanism of going to the court for a court order to name an ISP subscriber for years. They just elected not to use it and tried to bully subscribers with infringement notices. And any ISP that didnt pass on these notices were run over the coals by AFACT as this case has demonstrated. But what this case demonstrates is that AFACT is not above the law. However I can see the Government tightening the legislation at the end of this case making any decision by the high court moot when it gets reversed by the incompetent Conroy and his band of merry men

Feels Good (0)

Anonymous Coward | more than 4 years ago | (#31017792)

Feels good to be a citizen of Australia, and a customer of iiNet. Way to go guys!

Users only infringe *once* per file (4, Interesting)

tdelaney (458893) | more than 4 years ago | (#31017880)

And additional important ruling (taken from the summary):

10. The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs.

This appears to be saying that when someone torrents, they only infringe copyright once. Which would make it economically unviable to go after people for casual copyright infringement via the internet, since damages would be severly limited.

Re:Users only infringe *once* per file (1)

yuna49 (905461) | more than 4 years ago | (#31018022)

This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system.

This is a very strange argument. If I torrent a movie and let it seed indefinitely, I will almost certainly have distributed more than one copy of the film. Did the justice really believe that torrenting is a one-for-one kind of activity where a downloaded work is uploaded once and only once? I haven't read the decision, but I wonder how much of it concerned downloading versus uploading.

These comments don't really alter the basic thrust of his decision, but they do give one pause to wonder how much the justice really understood about the mechanisms of the "BitTorrent system."

Re:Users only infringe *once* per file (1)

Hyperhaplo (575219) | more than 4 years ago | (#31018218)

I believe what it means to say is "a user will download a file (movie) once" and "it is a rare case that a user will download a movie more than once".

Hence, each user can not be said to have 'stolen' 'many' 'copies' of a 'file' (movie), but instead may (according to this intepretation) can only be liable for 'one' copy of the file - therefor reducing damages.

Ya?

Re:Users only infringe *once* per file (0)

Anonymous Coward | more than 4 years ago | (#31018248)

Perhaps it is more regarding how the actual offence is defined. Such as, you can't be fined twice (e.g. by a speed camera and a seperate police vehicle) within a defined scope of distance and time.

I'm sure there are technical difficulties as well regarding how to determine exactly how many times an infringement occured when it isn't the whole movie, but only minor portions of the movie that is being transferred.

Re:Users only infringe *once* per file (2, Insightful)

rswail (410017) | more than 4 years ago | (#31018312)

"letting it seed" isn't transmitting it ("making available") or copying it. It's made available once (seeded), and then each individual downloading is infringing. This means that even if they do manage to prosecute an individual, it will be for one copy made (if they catch them downloading), and one making available (if they catch them seeding).

That severely limits the potential liability, makes it a civil offence, not a criminal one and probably not worth the studio's time.

Re:Users only infringe *once* per file (0)

Anonymous Coward | more than 4 years ago | (#31018332)

Ok think of a closed network of 5 computers.

I sit down at computer A, and add a file to a torrent. Computer B, C, D & E start downloading my torrent (and thus sharing with each other). If all 3 of us end up with a copy of the movie etc then theoretically 4 copies (plus 1 original) have been made.

However if they took person&computer C to court they could say: You have uploaded files to B, D & E therefore you've distirbuted 3 copies. Pay us for 3 copies (plus the copy you downloaded for yourself)

Then go to person&computer D, and say you have distributed to B, C & E. Pay us for 3 copies (plus the copy you downloaded for yourself). So on and so forth until A

A has then distributed 4 copies to all of B-E (plus the one it has originally, but presumably thats paid for).

So if the studio got paid for 4 copies from each of the 5 participants in the download, thats 20 copies + the 1 originally purchased. But we know there can only be 5 copies total - one of which was paid for.

If uploads were counted on only a 1:1 basis, the compensation would be 1 copy each for A:E so 5 copies + one original for 6. Much more reasonable.

Re:Users only infringe *once* per file (2, Insightful)

InfinityMinusOne (901693) | more than 4 years ago | (#31018382)

This is a very strange argument. If I torrent a movie and let it seed indefinitely, I will almost certainly have distributed more than one copy of the film. Did the justice really believe that torrenting is a one-for-one kind of activity where a downloaded work is uploaded once and only once? I haven't read the decision, but I wonder how much of it concerned downloading versus uploading.

Actually, the judge is correct. Some people seed more, some people seed less, but on average the number of uploads for each bittorent participant is equal to 1.

The reason is, for any given file distributed through bittorrent, the average number of uploads or downloads per person is each equal to the total number of uploads or downloads, divided by the number of persons participating. Since each kilobyte downloaded is uploaded by someone else, the total number of uploads and downloads are equal. So the average number of uploads per person has to be equal to the average number of downloads per person. And for any participant, that average number of downloads is 1.

I'm ignoring the possibility of incomplete downloads, blocks that needed to be re-downloaded, or the fact that the original seeder didn't need to download the file, but those are fairly minor factors that will not substantially alter the result.

Re:Users only infringe *once* per file (2, Insightful)

Dr Damage I (692789) | more than 4 years ago | (#31018392)

In order to understand this portion of the ruling, one must assume that the judge is not referring to persons making the file available, but to persons downloading the file. Which makes sense, because otherwise you end up double counting many times over: Once you start counting uploads, you multiply the total number of violations without increasing the number of copies being made.

Suppose you have 1 file, 10 persons making copies and one person seeding the file (A highly simplified example for the sake of argument). if you count only downloads, you have 10 infringements: equal to the number of copies being made of the file. I assume that the recording companies would like to count uploads as well, including partial uploads. In which case, each person downloading the file would also be uploading portions of the file to up to 9 other people for a potential maximum of 110 infringements (the seeding user uploads to 10 people, each downloader downloads 1 time and uploads to as many as 9 people) where only 10 copies of the file were actually made. A fairly bizarre outcome IMO.

Re:Users only infringe *once* per file (5, Insightful)

masher_oz (1145983) | more than 4 years ago | (#31018092)

So it looks like merely making a file available isn't an infringement. This is congruent with the finding that

20. The law recognises no positive obligation on any person to protect the copyright of another. The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts. In the circumstances outlined above and discussed in greater detail in my judgment, it is impossible to conclude that iiNet has authorised copyright infringement.

Just because you're able to copy my file doesn't make me responsible.

Re:Users only infringe *once* per file (1)

jeffrey.endres (1630883) | more than 4 years ago | (#31018408)

Just because you're able to copy my file doesn't make me responsible.

No, that would be publishing the file which assuming that you did not have permission to publish, would be copyright infringement. If you did that however, neither I nor anybody else, would be under any obligation to stop you from publishing it or stop others from downloading it.

Almost there... (1)

fremean (1189177) | more than 4 years ago | (#31018056)

Now, if we could just get rid of Conroy and Aktinson - I could almost be proud to call my self an Aussie again...

Loved the line (1)

AHuxley (892839) | more than 4 years ago | (#31018108)

'The law recognises no positive obligation on any person to protect the copyright of another.
The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts."
From http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html [austlii.edu.au]
Roadshow Films Pty Ltd v iiNet Limited (includes summary) (No. 3) [2010] FCA 24 (4 February 2010)

The best quote of the ruling (4, Interesting)

tick-tock-atona (1145909) | more than 4 years ago | (#31018260)

To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.

http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html [austlii.edu.au]

Re-arranging the Applicants (1, Interesting)

Anonymous Coward | more than 4 years ago | (#31018262)

I've re-arranged the applicants based on ownership or affiliation (including distribution deals); the last number in brackets is the order on the list. Not a lot is left....

NBC UNIVERSAL:
  UNIVERSAL PICTURES (AUSTRALIA) PTY LTD (11)
  UNIVERSAL PICTURES INTERNATIONAL B.V (13)
  UNIVERSAL CITY STUDIOS LLLP (2)
  UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP (14)
  UNIVERSAL STUDIOS INTERNATIONAL B.V. (27)
  NBC STUDIOS, INC (19)
  RINGERIKE GMBH & CO KG (15) (Movie: "Wanted" (2008))
  INTERNATIONALE FILMPRODUKTION BLACKBIRD VIERTE GMBH & CO KG (16) (Movie: "Mummy 3" (2008))
  MDBF ZWEITE FILMGESELLSCHAFT MBH & CO KG (17) (Movie: "The Kingdom" (2007))
  INTERNATIONALE FILMPRODUCKTION RICHTER GMBH & CO KG (18) (Movie: "Mamma Mia!" (2008))

VIACOM:
  PARAMOUNT PICTURES CORPORATION (3)
  PARAMOUNT HOME ENTERTAINMENT (AUSTRALASIA) PTY LTD (8)

TIME WARNER:
  WARNER BROS. ENTERTAINMENT INC. (4)
  WARNER BROS ENTERTAINMENT AUSTRALIA PTY LTD (32)
  WARNER BROS INTERNATIONAL TELEVISION DISTRIBUTION INC (21)
  WARNER HOME VIDEO PTY LTD (23)
  VILLAGE ROADSHOW FILMS (BVI) LTD (12)
  PATALEX III PRODUCTIONS LIMITED (24) (Movie: "Batman Begins" (2005))
  LONELY FILM PRODUCTIONS GMBH & CO KG (25) (Movie: "Blood Diamond" (2006))

WALT DISNEY CO.:
  DISNEY ENTERPRISES, INC. (5)
  BUENA VISTA HOME ENTERTAINMENT, INC. (9)
  DREAMWORKS FILMS L.L.C (20)

NEWS CORP:
  TWENTIETH CENTURY FOX FILM CORPORATION (7)
  TWENTIETH CENTURY FOX FILM CORPORATION (AUSTRALIA) PTY LIMITED (10)
  TWENTIETH CENTURY FOX HOME ENTERTAINMENT INTERNATIONAL CORPORATION (22)
  TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC (33)

SONY:
  SONY PICTURES ANIMATION INC (26)
  SONY PICTURES HOME ENTERTAINMENT PTY LTD (28)
  COLUMBIA PICTURES INDUSTRIES, INC (6)
  GH ONE LLC (29) (Movie: "Ghost Rider" (2007))
  GH THREE LLC (30) (Movie: "21" (2008), "Vantage Point" (2008), etc.)
  BEVERLY BLVD LLC (31) (co-financing fund with Relativity Media)

SEVEN NETWORK (OPERATIONS) LTD (34)

Stupid samzenpus (0)

Anonymous Coward | more than 4 years ago | (#31018360)

"Landmark ruling" and Australia don't mix. Who gives rat's ass?!
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