AFACT 'goes for the throat' in iiNet case

The copyright industry body withdraws another claim against iiNet close to trial date in a bid to boost its main case

The Australian Federation Against Copyright Theft (AFACT) has dropped another legal claim against iiNet six days before its Federal Court trial in a bid to bolster its main case.

The legal brawl over copyright infringement was instigated by AFACT against iiNet in November. Representing a host of movie studios, AFACT accused the ISP of violating copyright laws by allowing subscribers to download films through BitTorrent and peer-to-peer (P2P).

In AFACT’s Outline of Submissions tendered to the Court earlier this month, the industry group omitted a former claim which alleged iiNet made copies of and stored pirated movies. That aspect of the case asserted the ISP cached the illegal content as it passed through its network when users were downloading movies. AFACT subsequently conceded to the Court that it has withdrawn that claim.

This marks the second time the industry representative has dropped a portion of its case. In May, AFACT disposed of a legal claim known as ‘conversion’, which suggested iiNet denied copyright holders their right over possession.

AFACT stressed it is trying to pool more resources behind the main part of the case by shedding the peripheral components.

“The authorisation part of the case, which says iiNet failed to prevent online copyright theft of customers, has always been the main part of the case,” an AFACT spokesperson told ARN. “The cache and conversion claims were always subsidiary."

In response, an iiNet spokesperson vented his frustration at the industry group’s penchant for dropping bits of the case and its shallow comprehension of the Internet industry.

“It’s a frustrating and annoying thing that they would make these mischievous claims and withdraw them at the last second,” he said. “We didn’t think they had any evidence to support that claim and it has turned out that we were right.

“They clearly don’t seem to understand how the Internet works and for AFACT to make that claim in the first place shows its ignorance over the technology.”

AFACT defended its late decision, highlighting iiNet’s own shortcomings in timely submittal of evidence.

“iiNet is still filing evidence before the Court and there are documents we are still receiving as close as yesterday and today,” the AFACT spokesperson said. “In terms of cutting it fine, it’s a tight timetable and as evidence comes to light, decisions are being made close to the hearing date. But you certainly can’t draw any conclusions on that.”

The trial commences on October 6.

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32 Comments

Ricko

1

Why iiNet and not other ISP's???

I dont know why iiNet are being targetted when every other ISP allows you to do the same thing. I have delt with iiNet many times in the past and their one of the easiest hassle free companies to deal with which i cannot say for telstra. Telstra overcharge, have shit customer service and couldnt fix a problem if the answer was staring them in the face!! But no, that's OK we'll just destroy every company that gives good service, because it's un australian to give good service. AFACT is just a bunch of apes swinging from the trees.

gorbs

2

Because they're still small enough not to have a war chest

AFACT is linked to BigPond via Telstra and the deals cut with the copyright owners for distributing content. They also have a sizeable war chest to fight such a case.

Anonymous

3

Since when was it about money? It's all about DRM in the end.

Whatever happened to art for art's sake? Art isn't supposed to be about money.

People that make money from art are lucky they have that opportunity and should embrace it for as long as it stays.

I know I didn't piss away all of the company profits made by Sony and DGC.

Just because they sign an artist or songwriter for many millions of dollars, only to make a turd of a product, why should I pay for that?

If I like one track on an album, why the heck should I buy the whole album after the musical group has put filler tracks on the rest of it? for example NERD: Seeing Sounds.

I don't feel good when I waste $30 on something that provides me 3 and a half minutes of value.

Once again, it's the businesses and companies fighting against the system and technology that they profit from.

Check out the sensationalistic content on the AFACT website http://www.afact.org.au/

Illegal activity becomes rampant in countries that do not provide room for their residents to act legally. This is why Russia and many asian countries are rife with counterfeitting. This is also why law enforcement on this subject is very lean in said countries.

If you had the choice to jaywalk across the road in order to remain alive if a person was chasing you with a knife trying to stab you?

People need to eat/live/buy things.

It's just a new way to put the squeeze on the little guy.

I think the mandatory Australian web filter concept is probably more likely to be about protecting the RIAA and the MPAA's content by use of DRM (digital rights management) than protecting art and artists.

The term that Steve Conroy etc keep bringing up is "child pornography, bestiality and other illegal material", but he won't clarify what illegal material. well... content that is unrated by the OFLC in Australia is unable to be broadcast and technically illegal, even if it would be rated as M 15 + or less, it still needs to be submitted for approval, so it regionalises the geographic area much like zone encoding on DVD players.

This will enable the big publishers to control the rate and flow of media in all forms.

Could you imagine a whole floor of an office building of the major record labels or movie studios being dedicated to finding websites which host "illegal content" and those employees submitting the data to the classification board (OFLC) to get that website blocked?

I know I can.

The big publishers and movie makers want to be able to relax and still distribute a large load of crap and a small amount of good content, they want it to be about volume.

The more units made means more sales opportunities means more money for the big players.

Unfortunately, volume of product does not equal volume of good product.

People pay for things that are of good value. This theory works well in any industry.

If you create a product and price it so it is value for money, then there's lots of money to be made for those involved.

ps. how long has it been since the media companies have talked about increased profits made from live events?

Anonymous

4

They're targeting iinet so as to set a precedent. iinet is not so small that it won't matter if they lose, and not so large that it has unlimited money to throw at defending the case. If iinet lose the case of course they will go after other isp's.

Anonymous

5

AFACT's a fact?

I consider your sub editing to be a trifle misleading as it sems to accept AFACT's obvious scrambling to mend their latest gaffe in this increasingly pointless and desperate exercise as some sort of effective tactic. Two strikes and waiting on the third, rather ironic really. It seems that AFACT's expensive team of briefs is counting on the previously demonstrated incompetence of the courts to handle anything remotely technical in a fair minded and contemporary manner. Hopefully this will not occur here and they will be forced to wear some of the financial pain they have tried to apply to so many others.

Anonymous

6

Why not sue main roads for the fact that their roads are sometimes used for criminal conduct such as bank robber?

Or electricity companies for supplying electricity to criminals?

Telephone companies, airlines, water companies.....

maniac

7

Roads

Was thinking the same thing.

V for Vendetta

8

True but Telstra's legal team are helping iinet and have been for some time now. We all know how painful Telstra's lawyers are and how much money Telstra can throw at this. Let's face it AFACT bit off mroe than they can chew.

Anonymous

9

bigpond and afact links?

You need to find a new source of information or stop making it up. Previous news articles revealed telstra offered legal help to iinet. Not the kind of thing they would do if they were linked to afact.

Anonymous

10

AFACT hasn't got a case

They simply have not got a case. The court should have thrown this out months ago.

There is a little important thing called due process. If AFACT is too lazy to follow due process then my only conclusion is they don't believe in justice for everyone which is something we should be worried about.

iiNet does NOT have to disconnect one of their customers due to AFACT whining about copyright infringement. There is one exception to this and it is unless AFACT manages to get a court order.

Anonymous

11

lol, what i love is the "conversion" which is a tort. LOL, to sue in the tort of conversion, you need the right to possession, other wise you cant bring an action... they would need to represent the producers directly, to bring an action :D BWahahaa, thats why it was dropped.

Anonymous

12

iiNet and AFACT

Agree with most comments - AFACT should be call NOFACT- their conduct is a disgrace.

Hellfire

13

This case should be thrown out of court

ISP's simply offer a service to their customers to access the internet. The customers are surely responsible for their own actions and the ISP's are not responsible for what content people download via the internet. I want to know how AFACT monitors individuals downloading of material and if this is not a breach of privacy and illegal. If AFACT monitoring is legal and above board surely it is their responsibility to persue the party legally who is breaking the law by downloading copyrighted content.Withut a conviction surely the ISP would be penalising someone unfaily by denying service without the legal process being followed. This case is a no-brainer and should not even be before the court.

Anonymous

14

I've seen this dirty trick before...

I've seen this dirty trick before (in another movie studio case overseas) of including a number of serious but essentially baseless claims which they ultimately dropped just before the trial started.

The more claims lodged, the more it costs the defendant to mount a defense and can distract the legal team from mounting a robust defense of the primary claim(s).

Unfortunately it's not illegal to employ this and a number of other legal dirty tricks.

NOTE: IANAL, just been on the receiving end of enough legal dirty tricks to recognize them when I see them.

Peter

15

They should sue Telstra for providing the wires

Franko

16

AFACT are NOT the law

The AFACT case is based around them setting up a "honeypot" operation - then going to the ISP to report it and DEMAND that people be cut off. Since when has some investigator hired by a private, non-governmental body have the right to demand anything?
They are not the police, they are not bound by oaths of service and the strict chain of evidence and are not liable for action against them if their claim is mistaken.

If they have evidence than can stand up in a court of law - then provide it to the lawkeepers and lets do it the right way - where the accused can have their say, the evidence presented in front of a duly appointed judge/magistrate and a decision made that has to be fully written up and justified - as well as being open to discussion and review.

Taking a smaller ISP on is just a show of cowardice - hoping that iiNET runs out of money before they do - then they get to set the precedent by default.

The copyright laws are there - the process is there - use it. Expecting action "just because you say so" is outside law and justice - ironic really.

Anonymous

17

Legal Costs

I feel that anyone that feels stongly enough that this unjust toward iinet can and should assist with iinets legal costs by means of "anonymous" donations providing it is legal to do so. I imagine that that parties providing AFACT with funding have probably got very deep pockets

Anonymouse

18

Can i ask what part of downloading a movie to watch is iligal.

If i have a optus broadband cable and i download a movie to watch it. I am in effect paying for that download to optus as part of my bandwidth agreement.

Now i also have optus pay TV and the chances are the same movie will come down the same cable into my pay TV box that i also pay for.

So with this in mind the only differance is when i watch it.

I would not pay yhe extra fee to watch is on Box office but would wait for them to show it on a STD movie channel.

The next part of this argument is have they lost a sale if its something i would never have paid for in the first place.

If i was never going to go to the movies or pay for box office then they were never going to get my $$ anyway. And i would of seen the movie for no extra $$ when it is on the movie channel. So whats been lost? Nothing i have in effect paid slightly more for the priviliage of watching it sooner as it comes off my download Quota.

The massive $$ that these companies claim to have lost due to people downloading movies is an made up ammount.

To claim this is like Car companies claiming they have lost a sale everytime a car is stolen.

I know that leagaly there is holes in my argument . But just cause its Law dosnt make it right

Just another watcher

19

Whats been stolen??
I

Whats been stolen??

I download a movie using the Optus internet cable that will in 2 mths transmit the same movie to me for no extra charge on my pay TV ??

I would never of paid extra to watch it anyway either in the Cinima or on Box Office.

The $$ they claim to loose would be the same as car companies claiming lost sales due to Car theft

Anonymous

20

iinet should look at the french case on Pirating

The internet is not luxury but a service such as water/electricity and sewrage and cannot be disconnected until an order from a judge is given after a court case.

Anonymous

21

Theft is in the eye of the beholder

Or better yet the petrol giants whining about lost revenue due to peoples use of public transport...

I had a situation a few weeks ago where my hard drive recorder stuffed up and I missed an important (to me) game of finals football. I jumped on CH9 hoping they would have some option for watching missed content online, even if I had to pay for it, but sadly it seems the mega $$ networks are way behind the times as no such option exists. A day later i managed to find it on bitorrent meaning the only way I could watch the game was to illegally download an illegal copy. So my question is why should any part of what I had to do be deemed theft and thus illegal? It was a show freely broadcast, I could have legally watched it live, I could have legally taped it and watched it later, I could have legally rung around and found a mate who had taped it and gone over to his house to watch it or borrowed his hard drive recorder and taken it home to watch it. All 100% legal options except the most convenient one.

Mike

22

What Is Piracy?

If I legally obtain and watch a movie, what I 'own' is a 'right' - a right to watch the movie. This 'right' is a legal contract between me and the copyright holder.

If I illegally obtain and watch a movie, I have done something the copyright holder had the right to prevent me from doing. What I have 'stolen' is not the bytes, but the rights.

Since iiNet only transmits the bytes, I don't see why they are involved at all.

Just another watcher

23

But as i said if you have downloaded the movie and watched it . you are still going to be paying the monthly fee when it is on cable TV in a few months and you wont watch it because you have already seen it.

So what they are sueing for is that they dont want you to watch it earlier than they say so .

They have to re jig a lot of industries the Music & Movie companies are only a few.

maybe the movie companies should be joining forces with the Cable tv and ISP and provide a service that allows you to download movies as they are released & it dosnt come of your Download Quota. But only if you are a Cable TV subscriber.

I would pay an extra $10 a month for that service & belive me they wuold be lucky to make $ out of me a year the way it is now. I am basicly happy to wait till i get it on normal pay TV as i,m paying for that anyway.

:)

Anonymous

24

Peter, heading is for summary, body is to flesh it out. :-)

nerdybails

25

The reason they are going after iiNET is....

That unlike other ISP's, when iiNet received a letter from people like AFACT saying that a certain IP on such a date was downloading a specific movie or whatever they were refusing to send it on to users or disconnect them based on those grounds.

iiNets defense is that they don't support it but are not going to police it as its not their job.

The letters have always been a scare tactic passed on from the ISP to the user but it doesn't seem to be a heavy practice or having anywhere near the effect they desire.

At some point they have to realise that all this money being poured into courts and lawyers is a waste and maybe...just maybe it would be worth pushing those millions through a tech fund to develop an itunes-esque solution so people actually have a decent option?
Call me crazy but my logic must be wrong because none of these guys realise that yet. How much are they actually losing (not what they claim) vs. how much they are spending to stamp out the "piracy epidemic" that is crushing their industry, apparently?

Full explanation of it all here:
http://www.freedomtodiffer.com/freedom_to_differ/2008/11/iinet-sued-for-copyright-infringement.html

Anonymous

26

Read all about it

<em>Headline "All ISP's found guilty of aiding and abetting their criminal customers!"</em>

Are ISP's being accused of aiding paedophiles when their customers are caught with kiddy porn?? I think not. Why? Simply would not hold up in court.

This case is doomed. AFACT are going to get hammered. There are so many parallels online and offline in life where similar claims would be laughed at and cast aside without hesitation.

The whole premise of this case is littered with holes. All ISP's should be banding together to smash the AFACT case to pieces and grind them into dust for this....

Anonymous

27

ISPs make money from downloads..

Right owners have been losing revenue through P2P and bittorrents for years now.. continuing to generate more and more revenue from their losses are ISPs (in Aus), who are not keen on either filtering or a 'copyright levy'.

I like the levy idea, as an attempt to secure some of this redirected revenue, while hopefully legitimising downloads to a degree.. Producers might still insist on ISPs' heavy filtering/targeting individuals, which I think is a backward step (+ I'm sure users will find a way around this).

It is clear AFACT are seeking to create a precedent here (for all rights owners not just movie producers) and although they are not targeting BigPond directly, they might as well be. AFACT may have bitten off more than they can chew.. but it will be interesting to see.

refer ARIA V KAZAA verdict for a little insight perhaps some of you.

sambo

28

ISPs make money from downloads..

Levy is a good idea? Think about what you are proposing a little bit here.

With an imposed ISP levy everybody with an internet connection just hands money over to a very small group companies, regardless of whether they actually download anything legal or illegal. Don't think for a second that these costs won't be passed on to consumers

I for one do not want to be forced to subsidise some outdated industries that can't adapt their business models to take advantage of the massive opportunities digital distribution provide.

And for what, pay a monthly tax so that Hollywood can keep on producing utterly rubbish movies that practically nobody wants to watch? I think not.

Dowloading is not killing the industry no matter how the incumbents try to spin it. Good movies still make a fortune at the box office even though they also happen to be the ones most downloaded so that argument is simply false.

Movie reviews spread super fast now so if a movie is perceived as bad, far less people are likely to go see it however might wait for the DVD or download it. So some people who would not pay to go see a particular film at the cinema & would never buy a DVD do exactly that yet somehow the industry is 'losing money' . Quite twisted logic there that if a person who was not going to spend money doesn't its now counted as a loss. The fact that they still watch is at all is the massive opportunity that the movie companies seem to have missed here.

On the ISP's make money from illegal downloads you need to look at the bigger picture. If every service or product that somehow could be used for illegal activity should be taxed then where do you start? Telephones are a good place, any form of transport (can be used in robberies, speeding, smuggling etc), pens, paper, electricity, etc etc.

Sure its tricky situtation but pandering to big business at the cost of and with no benefit too the consumer is not how captialism is supposed to work.

Natoar

29

This is so wrong.

I work for an ISP the standard terms and conditions are simple we are not responsible for content viewed or downladed over the internet you can't simply block peer to peer ports or software as they will just find away around it straight away are ISPs going to be sued for allowing spam emails through too we filter 100s 1000s spam emails there is no real way to ever stop p2p without disconnecting to internet AFACT are so dumb i don't see how they could win a case at all. also you cannot monitor customers downloads without invading privacy, and if any of AFACT partners into industries have been trying to offer the download through p2p to catch people then it there own fault for ofering the download!!!!! this is rediculas and I hope iinet tears them appart in court.

Fozzy

30

The movie industry is built on piracy

Why is Hollywood on the west coast of the USA when settlement came from the east? Because the movie studios were started by stealing the intellectual property of Thomas Edison and they wanted to be as far away from the reach of the law. So now we have an industry founded on IP theft taking someone to court for IP theft. My hope is AFACT lose this case and it helps in moving creative industries to a business model that doesn't rely on artificially created scarcity.

AFACT are idiots

31

umm has anyone heard of TIVO...

So who is next? TIVO is a device that lets you record whatever it is you are watching, so based on AFACT current case will they be pursuing TIVO with a law case as TIVO are knowingly manufacturing and marketing a product ENCOURAGING people to "record TV shows".

Anonymous

32

TiVo is safe

Channel 7 are hypocrites, but I've come to expect that from them with rubbish like "Today Tonight".

You see, TiVo in Australia is via Engin, who's ownership is Channel 7, Channel 7 have a significant interest in TiVo as another revenue stream.

So, TiVo is safe.
A VCR on the other hand..

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