[Chapter-delegates] ISOC France and Hadopi

[Fred Baker]

On Apr 29, 2009, at 3:38 PM, Holly Raiche wrote:
> It is also an issue in Australia - but through the courts.  An  
> action is being brought against a medium sized IS iiNet, essentially  
> arguing that they should have known - and therefore stopped - that  
> copyright material was being downloaded.  iiNet is getting a lot of  
> support from others in the industry, so time wil tell what the  
> judgment is - and then if there is any response from the  
> Government.  So another global issue to watch


Goodness. The fact that content is copyrighted is more or less  
irrelevant to whether it is being downloaded. If you go to https://www.isoc.org/ 
, you will find at the bottom of the page the assertion "Copyright (c)  
2007 Internet Society | Last Modified on 29 Apr 2009 ".  Every time  
you download the ISOC web page, you are downloading copyrighted  
material. The ISP should stop that?

The point is what the downloader is doing with it. If the use is  
consistent with the terms of use, that's one thing, and if not, that's  
another. I don't see how the ISP is a judge of intentions of the  
downloader - or, for that matter, the uploader.

If the issue that the court is making is that the means of download  
was not authorized by the copyright holder (that the content was on  
bittorrent-or-whatever and the copyright holder had not placed it  
there), Larry Lessig's comments apply. He himself places his own  
(copyrighted) content on such a service and distributes it by that  
means. The fact that it uses a peer-to-peer service doesn't say  
whether the material is copyrighted, what the use is, nor what the  
terms of use are. It merely says how the material is being delivered.

It seems to me that if the copyright holder wants to file a suit (loss  
of revenue, copyright infringement, or whatever), s/he is obligated to  
sue the person who placed the content on the p2p system and/or the  
person who is downloading it.

Here's an analogy that the court might follow. If I take a book and  
send it to you using the USPS Book Rate, I am assuredly mailing you  
copyrighted material (a book) and telling the USPS that I am doing so.  
Is the USPS as a result liable for damages? If in doing so I have  
violated the copyright or the terms of use, it seems to me that the  
person mailing the package and possibly the person to whom it is  
addressed are the parties of interest.