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

Sun Feb 7 22:12:59 PST 2010

A post courtroom interview with iiNet CEO Michael Malone, refers to
conciliatory comments he had just made where he suggested that the
movie companies work with him to find ways for his customers to
legally download their works.

It is to be noted that iiNet, which has bandwidth caps for customers,
already operates a ‘freezone’ of locally hosted content that can
accessed without limit – adding a PPV section would be no great leap.

http://apcmag.com/after-16-years-iinet-chief-michael-malone-is-still-excited.htm
http://apcmag.com/give-us-your-movies-iinet-says-to-studios.htm

j

On Sun, Feb 7, 2010 at 9:21 PM, Tony Hill <tony at keanyhill.wattle.id.au> wrote:
> Hi Christine
>
> Not sure if anyone else picked up the question in your P.S. below, in
> discussion on this list.
>
> I think that the applicants were 'very disappointed' at the judgement and
> its implications for them, and I believe they made this clear in their media
> comments.  In among that comment was contemplation of an appeal to a higher
> court in Australia.
>
> In discussions with colleagues, I formed the view that it would not be wise
> for the applicants to seek to appeal in Australia.  (Indeed, from my
> perspective it would be better for them to seek to cooperatively or
> competitively develop new business models that take account of the rights of
> copyright holders and Internet users for the benefit of all...but I am not
> them).  They have now received a judgement from one court in Australia (that
> was not to their liking).  To a certain extent, that provides a worldwide
> legal precedent on this issue (again not to their liking).  If they appeal
> that decision in the same jurisdiction, then it may have the effect of
> strengthening the worldwide precedent (not to their liking).
>
> Their better option may be to seek a different judgement in a different
> jurisdiction, to at least cloud the issue or rearrange the international
> precedent.  In other words, watch out for actions in other countries around
> the world.
>
> regards, Tony Hill
> ISOC-AU
>
>
> On 05/02/2010, at 7:55 PM, Christine Runnegar wrote:
>
>> Thank you Narelle for your excellent summary and analysis of the iiNet
>> case.
>>
>>
>> No small feat, particularly given the many complex issues covered in the
>> 200+ page judgment!
>>
>> Great media release too. Compliments to ISOC-AU.
>>
>> This case and your analysis will also be of great interest to the ISOC
>> Working Group on emerging policy responses to 'online piracy'.
>>
>> There are lot of things happening around the world in the Internet policy
>> space every day. Reports like this really help us stay on top of what is
>> happening in the local and regional space. Thanks!
>>
>> Best regards,
>> Christine
>>
>> P.S. Any word as to whether Roadshow Films Pty Ltd or any of the other
>> applicants will be filing an appeal?
>>
>> ______________________
>>
>> Christine Runnegar
>> Public Policy Manager
>> Internet Society
>> Galerie Jean-Malbuisson 15
>> CH-1204 Geneva
>> Switzerland
>>
>> Tel: +41 22 807 1455
>> www.isoc.org
>>
>> -----Original Message-----
>> From: chapter-delegates-bounces at elists.isoc.org
>> [mailto:chapter-delegates-bounces at elists.isoc.org] On Behalf Of Narelle
>> Sent: 4 February 2010 4:49 AM
>> To: chapter-delegates at elists.isoc.org
>> Subject: [Chapter-delegates] Australian court rules in favour of
>> Internetservice provider
>>
>> 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-fe
>> deral-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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