AFACT claim: iiNet customers forsake confidentiality once they infringe copyright
- 05 August, 2010 13:27
- Comments 4
The Australian Federation Against Copyright Theft (AFACT) has claimed iiNet customers consent to disclose their personal information once they commit copyright infringement.
AFACT represents a swathe a movie studios and is appealing the Federal Court decision in February that iiNet did not authorise the film piracy of its users. The matter has been taken up to the Full Federal Court.
On day four of the appeal hearing, AFACT barrister, Christian Dimitriadis, dismissed iiNet’s claim the company deemed it unreasonable to act on the numerous notices and documents provided by AFACT detailing the “rampant” film piracy occurring on its network.
iiNet has argued The Telecommunications Act 1997 prohibits the disclose or use of customer information so the ISP therefore considered it unreasonable to act on the notices regarding its subscribers’ film piracy issued by AFACT. But part 13 of the Telco Act stipulates an exception can be made if the customer grants consent.
Primary judge to the original case, Justice Cowdroy had recognised exceptions to part 13 of the Telco Act but since he ruled iiNet did not authorise its customers to illegally download, that point was moot to the case.
The ISP has taken the opportunity of this appeal hearing to fight against the applicable exceptions of the Telco Act.
But Dimitriardis claimed by signing the customer relationship agreement (CRA) required to connect an Internet service, a subscriber then agreed to not use iiNet service to commit infringing activities. If a customer does so, in this case, infringe copyright, iiNet had the right use personal information other than for administrative purposes to act on the infringements, he said.
The notices and documents tendered to iiNet by AFACT contained information gathered from public Bit Torrent networks. This included the IP addresses of infringing iiNet customers as well as the times the infringements took place. Since the gathered information was publically available, given to iiNet by a third-party, and infringing activities were violated the terms of agreement in iiNet’s CRA, Dimitriartis argued the ISP was well within its rights to act on AFACT’s infringement notices.
The barrister also claimed regardless of whether it could be definitively identified that the person pirating films on Bit Torrent was the actual subscriber, a service should be terminated since the listed subscriber is responsible for the use of its Internet connection.
The hearing continues.
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Comments
Peter
1
They seem to be missing the point. The movie industry does not have the legal capacity to declare who is guilty, only that of a court of law. The only people supporting AFACT's cause are the very greedy music and movie giants.I dont see any music execs out on the street. Perhaps because just like last year they made more money than the year before? 100% Crocodile tears.
Go pick on someone your own size AFACT, maybe go back to America?
Jerks
Brian
2
These clowns seem to be suffering under the delusion that the account holder and alleged copyright infringer are the same person. In some cases, they will be. In many cases, they are not.
I suspect this is why they don't want to sue the end user. They know that at best they could find out only the account holder and that would probably not be enough to win in court. If they took someone to court and lost, I suspect their fear is that it would deliver the message to those that do download copyrighted material that they are safe.
I'm fine with someone defending their rights. I am not fine with the "If I can't sue the guilty party, I'll just find someone else to sue" attitude.
James
3
Perhaps they do consent once they've infringed copyright - but you have to prove they've done so first, not just allege it. That still leaves AFACT to sue individuals without the help of ISPs, to prove that they're infringing. AFACTs arguments are so sickeningly biased and ignore the rule of law, the presumption of innocence and the equality with which the law should see us.
Anon
4
IANAL, but I have two comments to make:
1 - AFACT's argument that if a customer breaches a CRA it absolves the service provider of any confidentiality obligations is specious because the service provider can't be certain that the breach has indeed occurred until the rights holder's allegation has been tested in a court; this is because there are criminal sanctions for providing false or misleading evidence to a court (perjury), but only the expensive drawn out option of civil suit (defamation?) if a rights holder provides false or misleading evidence to a service provider (something AFACT would be well aware of and probably counting on).
2 - AFACT seem to believe that if a customer breaches the CRA, the customers personal information becomes the property of the service provider to use as they please, when in fact the Customer is still the sole owner of that information and the service provider is still bound by the original consents (even if the customer admits a breach to the service provider and the service provider opts to terminate the agreement the service provider is still bound by the original consents, the law does not suddenly afford the service provider additional rights over the customers personal information).