[Chapter-delegates] Australian court rules in favour of Internet service provider

[Sivasubramanian Muthusamy]

Hello

Most ISPs would like to remain Network Neutral if left alone, at least on
issues that do not directly affect their revenues. But the pressures they
are subjected to makes it difficult to be neutral.

Law suits such as the AFACT v iiNet succeed even when they fail, in the
sense that the copy right lobby has succeeded in sending out strong signals
to the ISPs that they will have to face legal ordeals and that an easy way
out of this threat would be to align with the business interests.

Law and Order agencies might send out different signals. Even in developed
countries, it is difficult for a business to be up against the government,
so the ISPs are forced into 'compliance', overtly or covertly. In countries
where the powers of the Governments are unbalanced it becomes very easy to
arm twist the ISPs.

They are caught in between, and increasingly being forced to deviate from
being Network Neutral. The iiNet verdict is an occasion
for celebration,  but ISPs the world over (who otherwise choose to be
Network Neutral) still remain vulnerable.  Is there something that we can do
to make it possible for the ISPs to assert themselves? Perhaps by initiating
a worldwide "Coalition of Network Neutral Internet Enterprises" to gather
the necessary strengths to effectively challenge the increasing threats to
their business operations?

Sivasubramanian Muthusamy




On Thu, Feb 4, 2010 at 9:18 AM, Narelle <narellec at gmail.com> wrote:

> All
> In Nov 2008 a group film industry players lodged a claim against an
> Australian ISP arguing it had infringed copyright by not cutting off
> users downloading copyright material. The Australian Federal Court
> today ruled against the film industry, saying:
> iiNet did not authorise copyright infringement because
> 1. infringements occurred directly as a result of the BitTorrent
> system, not the use of the Internet and this ISP does not control the
> BitTorrent system,
> 2. this ISP did not have the power to prevent those infringements
> occurring, and
> 3. this ISP did not sanction, approve or countenance copyright infringement
>
> The film industry had commissioned a third party to investigate
> copyright infringement from use of the BitTorrent protocol by iiNet's
> subscribers.
>
> "AFACT employed a company known as DtecNet to investigate copyright
> infringement occurring by means of a peer to peer system known as the
> BitTorrent protocol by subscribers and users of iiNet’s services. The
> information generated from these investigations was then sent to iiNet
> by AFACT, with a demand that iiNet take action to stop the
> infringements occurring. The measures which AFACT requested iiNet
> perform were never precisely elucidated. However, as the evidence at
> trial indicated, AFACT wanted iiNet to send a warning to the
> subscriber who was allegedly infringing. If a warning was not
> sufficient to stop the infringement, AFACT intended that iiNet suspend
> the internet service of that subscriber. If the subscriber remained
> unco-operative, termination of the internet service was sought as the
> ultimate sanction. In addition, or in the alternative, the applicants
> suggested that iiNet should block certain websites."
>
> It is these steps that ISOC-AU took exception to as it seems a denial
> of due process of law.
>
>
> Full text of the judgement can be found at:
> http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html
>
> iiNet's response:
>
> http://feedproxy.google.com/~r/iinetmediareleases/~3/sbX8VqvlU9I/20100402-federal-court-judgement.pdf
>
> here is the film industry's response:
> http://www.afact.org.au/pressreleases/2010/4-02-2010.html
>
> There are now a number of press articles out which a search will lead you
> to.
>
>
> MEDIA RELEASE
>
> ISOC-AU applauds today’s decision of the Australian Federal Court in
> the case of Roadshow Films Pty Limited v iiNET Limited. The Court
> found that iiNet, by failing to take any steps to stop infringing conduct,
> did not ‘authorise’ copyright infringement by certain iiNet users.. iiNet
> did not sanction, approve or countenance copyright infringement; they
> did no more than provide an Internet service to their customers.
>
> ISOC-AU believes the Internet is for everyone. ‘The Internet is an
> essential part of how Australians live, work and play‘, said Narelle
> Clark, Vice President of the Internet Society of Australia (ISOC-AU) ‘and
> the Court has confirmed that ISPs are not required to be the
> gatekeepers of Internet use‘.
>
> ISOC-AU also welcomes the finding of the Court that, because iiNet did
> have a repeat infringer policy, they would have been entitled to the
> protection offered by the ‘safe harbour’ provisions of the copyright
> legislation.
>
> ISOC-AU recognises that people should be rewarded for their creative
> endeavours and that other models may need to be used or developed to
> reward content creation and distribution. We also support the right of
> all to due process under law, particularly to ensure that Internet users
> are not arbitrarily cut off from Internet access.
>
>
>
> --
>
>
> Narelle Clark
> Vice President
> ISOC-AU
> _______________________________________________
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> http://elists.isoc.org/mailman/listinfo/chapter-delegates
>
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