Conroy holds his breath for iiNet v AFACT verdict

Conroy gets it wrong again

Clearly Stephen Conroy has guessed the wrong answer once again. ISP's like telecoms companies, power companies, water suppliers and even train providers etc. are not responsible for the use to which their service is put by users. You cannot ask Telecom to stop all illegal activity on the millions of phone calls made each day and in exactly the same way you cannot ask ISP's to prevent illegal activity on the billions of packets of information they handle each day.

There are currently legal avenues for copyright holders to approach a court and seek information about an internet user IF the court believes there is evidence to support it. Then an ISP can be ordered to provide details of the user of the IP address and the Copyright holder can press charges. Once a conviction is made, the ISP would be withing their rights to disconnect the user for breach of service conditions.

I don't see any problems with this process or any need for Stephen Conroy to get his finger into this pie.

Conroy Gets it wrong agin...wrong

Bryce, why didn't you just step up and save millions of dollars in legal fee's. You've obviously got the answers. Seems to me you didn't even bother to read the legislation which provides ISP ARE liable, despite your assertion to the contrary.

You talk about charges against the individuals.... we are talking civil liability. You need to settle down and let those who have real arguments, put them forward.

ISPs

Jason, sounds like you haven't read the legislation yourself. Read section 112E of the Copyright Act.

Once notified, all entities have a legal obligation to act...

I think you will find that once an individual or entity has been notified that illegal or potentially illegal activity is being facilitated within their domain of responsibility (anything they have a degree of control over), then even common law stipulates that you have a legal responsibility to act on that notification.

In regard to copyright issues, you will find that legal and litigation paths then open if you fail to act reasonably to prove, disprove, act or refer the matter.

The decision as to what is legal is a courts decision, can usually be appealed several times and will depend on their interpretation of the current laws.

If you take no clear action to address the notified transgressions, then state legal or private litigation can follow. (and it is litigation season on this issue....)

Remember that in both cases it can be argued, and often successfully, that if you have not taken "reasonable" steps to address the issue and notification, then you have committed negligence and could be found guilty in both the state (ie federal) legal and private litigation instances.

Just sending the notifications off to the police is a one-way street and if not already struck down as an excuse this time round, will certainly be capped in the future.

The old "none of my business" defence has been decimated in recent years by the "degree of culpability" rulings, where litigants have been able to argue that you knowingly contributed to the transgressions by ignoring or not acting reasonably on the notifications.

The relevant laws are not singular and not black and white. Contribution to offences by ommission to act is also a culpable act, and carries an arguable degree of legal responsibility.

Courts have been successfully appealed and argued to find degrees of culpability in various western countries, incl Australia, in similar cases in recent years. This should not be underestimated.

On the other hand, good lawyers can make a significant difference to both camps, and should also not be underestimated.

Sending notices

Roddy you note that "even common law stipulates that you have a legal responsibility to act on that notification."

And iiNet did that by forwarding the notices to the police whos job it is to investigate and prosecute criminals of all shapes and crimes.

It is not the ISP's job to do the job of the police, and even if they did have conclusive proof (and I'm not talking about the notices from the studio's) they are not allowed under the law to just disconnect someone.

I have decided Roddy that you frequently break the law while driving. Without actual hard evidence I am going to report you to main roads and have them suspend your license purely based on an accusation.

The same applies here

@ Rodney

"In regard to copyright issues, you will find that legal and litigation paths then open if you fail to act reasonably to prove, disprove, act or refer the matter."

".... or refer the matter." <Bingo.>

iiNet referred the matters to the relevent judiciary authorities did they not?
Obligation fulfilled. An allegation is just that. And an allegation by AFACT is not 'a fact' (as much as the acronym would like to suggest).
To expect that a commercial entity (ISP) would impose penalties on a third party (customer) on the basis of nothing more than unsubstantiated allegations by a representative body of other commercial entities is ridiculous. AFACT may appeal, but it's a loser's game.

"Just sending the notifications off to the police is a one-way street and if not already struck down as an excuse this time round, will certainly be capped in the future."

So you recognize the flaw inherent in AFACT's case. There is no 'one way street' just the law and your hopes of this being circumvented/repealed in the future is nothing more than a hope. (Though your comment sounds disturbingly like a threat)

AFACT will lose, and will continue to lose. Time to find another business model to line the pockets of those who seek to get rich from the creative talents of others methinks.

Conroy thinks he has the right to decide who wins

Basically conroys just said "it doesnt matter if you win, if you do we'll introduce legislation so that they can take you to court again"

So basically, if conroy thinks something is wrong, he just legislates to make it "right"

Is there anything we can do to get rid of this tool?

Re: Tailgator

It is saddening that you feel disturbed and threatened Tailgator, does that often happen to you when someone has a diverging perspective in a debate...?

The courts will eventually decide and will usually find a degree of responsibility lies with the operator once notified.

You speak about "your hopes" (ie my hopes?) in this discussion. You have zero justification to claim it is my desire or "hope". I am commenting on what I expect will eventually be the outcome of legal process and potential litigation.

I would say that the disturbing aspect here is the perception of a threat when someone puts a different point of view and analysis.

Is that the standard response to debate on this issue? You feel threatened because someone posted a different opinion and based it on typical outcomes from various similar cases in the past, where courts have found degrees of accountability for commercial providers?

Some sort of a system will be found to control the large scale copying of content. I am not commenting whether I find it right or wrong, I am commenting that it is being done and these groups will seek and find recourse in the courts.

When a work associate once offered to loan me one of his 500GB drives, full to the brim with music, films, cracked apps and whatever, it became amusingly apparent that the industry would at some time need to respond and seek some legal avenues to limit and control this.

Not my wish, not my action, simply a clear and logical deduction of an inevitability...

If that makes you feel threatened that I come to that deduction, then I apologise for treading on your sensibilities with my analysis.

Re: sending notices

As I said, the courts will decide on that, not us.

You really have to wonder who government cares more about here, The citizens of Australia or Big business.

Government is for the people, With a bias toward that direction with every argument.

ISPs are liable

I think that there is a lot of vested interest in this debate. Basically there are 3 views.

1. The Downloaders - Lets get it free, we don't care who we financial hurt as long as it is not me.
2. The ISPs - Please download as much as you can, as we like charging you for the higher download caps.
3. Those represented by AFACT - They are the people that lose money from the Downloaders and the ISP facilitators.

APC Mag wrote a couple of very unbiased yet worthwhile articles. Before you make rash comments on this, please read these (that is if you cannot be bothered to read the Copyright Act).

http://apcmag.com/afact_v_iinet_the_case_that_could_shut_down_the_internet.htm

http://apcmag.com/why_iinet_will_probably_lose_the_piracy_lawsuit.htm

Personally, I don't download unless I am buying items, typically from iTunes, the reason for this, is that I feel that it is the right of the inventor and the inventors go to market (including the companies that market, fund, invest etc) to exchange the time for a return. If the product is no good people will not buy it, however just because a product is portable does not make it free.

Re: You really have to wonder...

Michael, that question often throws up a conundrum, as it does here again.

We have a rights and contracts based legal system for the regulation of commercial activities and development.

That is there to protect the people (consumers AND business people AND content producers) as well as the commercial entities. (big business)

The people who set up and run businesses and the artists producers, actors, musicians etc themselves are also all people and they all also derserve and have a right to protections provided by law.

We have in principle a wonderfully simple commercial system: Some pople produce goods and services in their many formats,and others consume, use or acquire these goods and servcies in return for payment in monetary form or in an agreed exchange form.

Pretty simple:

One guy makes and another guy buys: In some format.

Or:

One guy makes and many people buy: In some format.

If you do not agree with the value proposition or price, with the trade terms, then do not buy, trade, exchange or acquire.

Really, really simple.

Our laws, that protect everybody, do not recognise the concept of taking or acquiring a product or service without permission or payment as agreed by the producer or his/her assigned representative.

That is hten illegal, no matter how we dress that up...

That is pretty simple, true?

Now this is truly not a case where people are being starved to death by a demonic ruler who is withholding food, water and the basics of life.

So if we cannot or do not want to pay the defined terms of purchase for a product, it is time to go elsewhere and look at other products that we are ready to pay the price and agree to the terms of trade.

Simple.

The internet did not change all those laws, it simply made it easier to transgress. AFACT and who-ever may be greedy snots and very unpleasant, but they represent a whole industry that ranges from people in big biz right back to every person who works and earns their living from the production of the products and services in question.

So some people should save the sanctemonious wheedling about how terrible they all are, and begin to come up with committments to how the producers of these products and services are going to be paid, and by them, not by others.

The balance in free trade systems is based on free enterprise, not on simply taking with no payment when you have no permission.

Some would call that thievery, and is not protetced by any of our laws I am afraid...

Influencing the case

Conroy already tried to influence this case illegally once by claiming that iinet was guilty before the case was even finished and now again he is using his influence to propose decisions based on an outcome that he tried to influence.

He should have been stood done for his actions or at least I hope iinet sue him for using his position to potentially influence a courtcase by saying a party is guilty before a decision is reached.

See this story for when he did that.

http://www.theage.com.au/articles/2009/0/02/1238261711464.html

<strong>'Opposition communications spokesman Nick Minchin and the shadow attorney-general, George Brandis, launched a joint attack on Senator Conroy today, calling his conduct "grossly improper" and accusing him of expressing a partisan view regarding potential evidence in iiNet's defence.

They said the comments had the potential to "prejudice a matter before the Federal Court".'</strong>

Now he talks about monetry gain for the monopolising US companies. Rediculous!!

Conroid is getting annoying

This guy is a moron. Its about time something was done about it, but no one who can seems to care.

As for Gov looking after Aussies or bg business (ASSFUCT not AFACT, would be a more descriptive name) who do you think pays for their election campaign?

I work with someone who has been well known for years in the Rave/Electronic music industry, with many releases on CD/Vinyl, and even a few world tours. Hang on, yes i did say work. He works in IT because, wait for it, the record companies swallow such a large amount of the money that he can't even live off it anymore like he once was able to. Its a bit hypocritical that these goons bang on about supporting the music industry, when it is them who are sucking the life out of it.

Conjob, if you are reading this, get off your Religious nutjob high horse (not saying all religious are nutjobs, just this moron)

Lol @ this.

Roddy

you seem to habve completely missed the fact that the caes is not weather or not it is illegal to download files, but weather or not it was the ISP's responsibility to act on it.

ISP did what it could - reffered a possible illegal act to the cops. The fact that ASSFUCT sent them thousands, and iinet passed on those thousands to the cops, adnd they ignored it (Cause seriously, that would lead to a "Boy who cried wolf" opinion) then they bleet on about how the ISP should be respnisible. ASSFUCT is not the law, neither is the ISP. I am with iinet 100% of the way. As for pirating, i personally will not buy any music that is not from a local producer (they tend to not go through tyhe big companies) so i know my money is not backing this disgusting organisation.

what do they want iinet to do, track down Batman and get him to look? Actually probably not, they'll try and sue iinet for saying the name without paying for it ffs.

What constitues knowledge

Basically it seems that the argument comes down to whether iiNet actually had knowledge of illegal activities based on fact, or whether they had accusations from a biased stakeholder.

If iiNet were negligent, what about the WA police who iiNet forwarded all these notices on to? They did less than what iiNet did.

I assume that when I tell the police I saw Conroy speeding they will take away his car licence. And when I say that he has a hydroponics setup under his house he'll have his power and water cut.

Re: Lol@this / Radley

Radley, I suggest you read the actual posts, that was the context of the discussion to begin with...

I simply pointed out that the courts will make that decision, not you, other posters or myself.

I also pointed out that there are legal precendence cases that have allocated degrees of accountability, and that this may happen here as well.

All that nonwithstanding, even AFACT (remedial spelling may help you here, you seem to have problems with names) is legally allowed to represent the media industry.

Do I like what the media industry is doing in this case? No I don't, and anyone making the assumption that I do is showing some ingrained prejudice...

What is being missed in the wild surge of desire to attack here is the simple fact that when any person or entity has been notified that a transgression of any law is taking place within their domain of responsibility, in the case the operations of an ISP, that the law and the courts will probably find that they have a degree of accountability to react and act reasonably on that notification.

This will bring a degree of culpability with it.

The courts will decide whether passing on the notices to the police will suffice to free iinet of responsibility and accountability.

Any reference to the legality or otherwise of pirating is again a matter of precendence, as other courts have made findings supporting the owners of copyright and contract, not piraters.

Not being the law does not resolve any of 100% from the responsibility to act when we are made aware of transgressions.

law enforcement

Illegal activities should be dealt with by law enforcement officers, not ISP's.

Re: law enforcement

It would be easy for all of us if it was that simple Harry.

However all Australians have a degree of responsibility and accountability when we are made aware of illegal activity within our domain of control, and that includes people as well as commercial entities.

As discussed, it will be up to legislators (in defining and passing legislation) and the courts (in deciding on cases brought to them) to define which actions are considered sufficient to fulfil legal responsibility.

Both people and entities have been found to carry a degree of culpability when they have demonstrated negligence and failure to act on knowledge of illegal activity, and simply passing that knowledge onto police may not fulfil the legislated requirements.

The courts will decide mate, lets' wait and see...

Now whether what AFACT wants is justified or not is another question, and there does need to be a minimum level of documentation of transgressions to validate a commercial entity acting on notifications, however precedence in the USA has demonstrated that this modus operandi has been effective in reducing transgressions...

That works against the argument that only the police should act in these matters...

Do I like AFACT? Nah, not really, I amjust interested in the legal ramifications and our ISP industry will finally accept and facilitate a degree of justified self-regulation.

Cos' if we don't, it will be forced on us, and that will be a pain.

But what is reasonable?

The question that this court case is all about, is what actions are reasonable for ISP's to take in relation to movie sharing?

Is it reasonable for ISP's to take action against their customers based on unproven accusations from biased and fallible 3rd parties without any independant confirmation?

Is it reasonable for ISP's to break the law (by intercepting customers private communications without a court order) to independently confirm the accusations of copyright holders?

Is it reasonable for ISP's to have to independently confirm potentially thousands of unique accusations per week?

Is it reasonable for ISP's to have to wear the cost of independantly confirming of these thousands of unique accusations?

Or is it reasonable to expect that the copyright holders should have to shoulder the burden of protecting their own IP assets?

Re: But what is reasonable?

I somehow missed some of those questions when reading the available transcripts from that case anonymous...

Your first question is spot on, and I also believe that this is the crux of the matter.

The following questions though seem pretty subjective and contain quite a few unproven assumptions.

I also believe that several other key questions came up, and I also hope the courts find a balanced finding that will not overly or unjustly burden the ISPs, but also allows copyright holders to exercise their rights under Australian and relevant international laws.

Unless of course you believe that no ISP users in Australia pirate stuff, in which case we have nothing to worry about.

The ISPs will scream once the police get intervention and tap orders on their operations, believe me they will scream...

Day of Fear response

I wonder why the ISP's don't get together and all shut down the internet in Australia for 24 hours as a sign of what might happen if they become responsible for enforcing copyright.

No internet in Australia for 24 hours would get world wide attention.

Conroid should be let go

Your Idea was also suggested if that Internet Censorship plan comes in, basically tell em its un Censored internet or o internet.

And the Lawyers will be rubbing their hands...

Oh i get it conroy, your being paid to push this internet censorship through.

Shutting down the internet for 24 hours

If there is any possibility of this being coordinated by ISP's the the Govt will move, and declare the ISP services an essential service and ban the ISP's from doing any such thing. The Govt relies bigtime on the services provided by ISP's.

Score for sanity!

Cowdroy has declared iiNet are not responsible for misuse and has ordered AFACT to pay iiNet's (no doubt astronomical) legal costs. Boom!

RE: Now What Conroy

If this decision is so important Conroy needs to now come out and stand by the decision. Start fixing the severely outdated Copyright Act and stop stuffing around with mandatory filtering.

Roddy do you have anything important to do...

Roddy, you really do blab on about stuff, yet unfortunately for you, you don't have the outsider looking in perspective on your own comments to realise what a fool you sound like.

Not sure exactly who you are employed by (most likely Govt cause you dont seem to be doing any actual work) I am sure they would rather you focussed on your duties as an employee than spending copious time trying to convince everyone how clever you are *sic*