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Copyright Enforcement (Updated)

UPDATE April 20 2012

The High Court of Australia has today dismissed AFACTS appeal with costs.

Today, the HCA declared that ISP iiNet did not authorise infringing users on its network. It re-enforces the decision by the Full bench of the Federal Court, and the decision of original Federal Court hearing with Justice Cowdroy.

Other important notes to come out is the recognition that terminating users wont stop them moving to another ISP and carrying on with their file sharing infringing actions.

As I've said before, MPAA et al need to change their ways by making the content available at same time as overseas, and digitally online and at reasonable prices.

TV Networks need to stop making us wait 4 to 8 months (or longer) for a series return, or a new hit series - after it has already aired in the U.S. and U.K. If they fixed this, TV pirating would be pointless, we know they can do it. FFS we have how many digital channels now? How about thrashing all these constant repeats and non popular shows and the like on one of the secondary digital channels. We should be able to watch the current airings of hit series at same time as U.S. and U.K. and by same time, I appreciate contracts declare it must air first in say, the U.S., but given the time differences, 24 hours would be acceptable, even 48 hours, but 4 to 8 plus months? Completely unacceptable, so the networks only have themselves to blame for this, no one else.

If these organisations changed their ways, there would be little to no need for piracy , ya know... EVERYONE, then wins!

If these changes are made, and with a little bit of hope, this High Court decision will make them wake up and come into the 21st century, and piracy remains rife (doubtful), then AFACT and the like need go after actual offenders, via the courts just like the legal avenues that have been there in place for decades now already, rather than try blame the meat in sandwich, sue enough of them, and then people will rethink their actions.

Original Story - 2011-07-12 15:55

For years people have allegedly infringed on artists rights, be it music or movies.

The alleged music copyright violations were mostly by people not able to get or use music the way they want, times changed, this thing called the Internet appeared along with a myriad of choices to play and store music, and after a while the music industry changed with it, the complaints of file sharing music became almost non existent because people were able to buy it legally from the likes of iTunes and other services offering same, it took a couple years more but then the DRM was removed so people who bought a track could use it on portable music players as well as their PC without dramas, but it seems here were are ten years later and the movie industry still hasn't caught on to a viable market, I guess it means they wouldn't be capable of justifying their high rip-off costs.

So, rather than grab another marketing avenue (like the music industry did a decade ago), they rather keep to their old ways, bullying Internet Service Providers into playing coppers to police and do their dirty work, this is evident in Australia in iiNet V AFACT where AFACT lost its case because Justice Cowdroy made it pretty clear ISP's are not net-cops....

The movie industry appealed several points on the findings, and Justice Emmett found that if the notices could be proved valid, the ISP's might have a case of failing to act, AFACT want to continue to try force ISP's to be liable for their users service. So, in this way of thinking, why is not the likes of Telstra Corp liable? After all they are the first port of call really, since they provide the direct means, by connecting the last-mile of copper, should Acer, HP, Dell, and so on be held liable because they provide the device for the end user? Will power companies be liable since without power there can be no Internet, yeah, hear what I'm saying, where does it end...

Why the three strikes wont work

One of my responsibilities at an ISP I worked for in early to late 00's was to also be the enforcer of AUP and T&C, we used to act on such requests, which, in recent times the Federal Court deemed we had no obligation to, although we had no right to kick off alleged file sharers, this was common amongst a number of ISP's then and at that time it seemed the lesser of headaches for us, because at that time, there was no legal clarification, something AFACT had a free ride on for way too long, since they never had to justify anything, now they've been told by Justice Emmett they do.

The robot notices are a joke

These automated bot things should have been ignored, why? Well, apart from the fact we assumed their guilt with no real evidence, and an ISP is not a police force, a court, nor a jury, because we once got a notice for a user sharing Open Source Software, so there is clearly no quality control on these things, when I attempted to converse with the complainant at the time (BayTSP) all of my requests were ignored, not one responded too, at that time, our policy, or at least my policy was to be slightly relaxed on this and issue warnings but only act upon very apparent repeat file sharers, a quick look at some of the accused infringers daily/weekly/monthly usage stats would be the basis for taking action or just another warning, but, in saying this, it is pretty hard to justify doing 300GB a month on a residential service, you likely are doing things you shouldn't be.

Terminating Users will never work

So, why the push for three strikes then terminations? What purpose is it going to serve?
I know first hand it makes no real difference at all to those who do this en mass. The New Zealand political party responsible for their three strikes rule is going to remove it from The Act, so there's no likelihood of anyone being kicked in the first place.

Termination for alleged Copyright breaches has not taught anyone a lesson in over 10 years, so it makes no difference, none what so ever at all to those who intend to download and share movies or TV shows etc, at best, it will temporarily inconvenience them for a few hours as their service is churned away to another provider, at best, it has them offline for a few days, where, they will reconnect with another ISP and continue their alleged acts of piracy.

I have seen it first hand, people I have terminated the services of have re-appeared on IRC gloating their back and downloading and sharing movies again, one person I even caught out admitting after he had his service disconnected, he reapplied using a different name and number, it was a share house of students, 4 of them living there with three phone lines, he was down for a total of 3 days, it made no difference to them, and this is not an isolated incident.

Take it from someone who knows, kicking them off is not, and I now admit, never has been, nor ever will be, the solution. They will be back, just with another provider, who might not be so quick to kick em off for them to churn to yet another ISP or method, and with the prevalence of pre paid accounts for access methods such as HSPA and dial up, mean they can be back before we even kick them. All it's doing is sending the problem to another service providor, it's not attacking the root cause.

Stop blaming the ISP's

It is a lazy cop out to suggest the solution is to go after ISP's, who legally can not just spy on their users for the hell of it and its been proved and shown in my personal experience and elsewhere as brought out in the initial court case, that these so called notices can not be taken at face value, even an alleged offender under the criminal code has his/her day in court where the evidence must be proved, but the movie industry think they are above the law and don't have to prove anything, imagine the chaos that would reign if every criminal court case was judged on word of mouth and not proved factual evidence.

The main reason that alleged file sharing is so rife is because the end users know the industry wont go after them, AFACT has as good as said that, so they are trying to have the ISP's made out to be the big bad bullies in all of this instead by insisting they do AFACTs dirty work for them, because going after the actual alleged offenders must be just too hard, and too much work, even though, it is the correct and only way to do it, and only way to make a change, that and making their product more obtainable, and at a fair price.

The buck must stop with the alleged offender, no one else, you don't see car manufacturers being done over because their vehicle type was used to transport offenders to a crime do you? Why should this be any different, it is high time policy makers came into reality and stopped bowing to the dollar$ of the movie industry. Life is all about balance, the law exists now to deal with the alleged infringers, why do they not want to use it? Why do they insist its the problem of someone else who is not the offender? If it wasn't such a serious matter it would be a complete joke.

But AFACT and their like, want the easy, lazy way out, it's easier to sue an ISP for millions, sit back and celebrate with their carton of $2K a bottle champers... they wont get that out of a student, will they...

The Solutions

People have a right to protect their work, it can be there lifeline, but there is a right way to deal with alleged infringement, it is the responsibility of AFACT and other movie industry representatives to go after the actual alleged offenders, by way of court orders for users details to allow for suite, prove to a court that the alleged infringer is guilty, if the courts agree, they will find in the industries favor, it might take a few cases, but word would soon get around and that would be by far the only real chance they have of reducing the level of the alleged offences, it might mean the poor diddums will actually have to get off their lazy a$$e$ and do some work for once, and actually even prove the offence was really committed.

Recently, even the European Commission has joined into this by saying:

The EU?s E-Commerce Directive says that ISPs are generally not responsible for the activity of
customers and that member states must not put ISPs under any obligation to police illegal activity on its service.

In my opinion, Justice Cowdroys findings in the iiNet V AFACT case were correct and reflect the real world.

The sane thing to do is to stop ripping off consumers, and the TV networks stop treating its viewers with utter contempt by showing re-runs of crap, when they could be airing current series of popular shows, why are we waiting 3 months to, in some cases over a year, to see a new series that airs in the U.S and U.K., and yes even the ABC is as guilty as the commercial networks (to which I also include Pay TV providors).

AFACT at it, yet again

In recent days AFACT has tried the bully tactics again, more or less threatening ISP's in a letter they sent out to them -
"If I do not hear from you within that time, AFACT will proceed accordingly," Mr Gane writes.

Read more on the latest stand over tactics by the AFACT goons at

In March AFACT announced that it had sought leave to appeal the Full Court's verdict to the High Court of Australia.
iiNet are also contesting some points of the appeal.
The application will go to a special hearing which is expected to be heard around November 2011.

Note: I currently have no directly related interest in this one way or another, as at time of writing, I do not work for an ISP providing end user services, but I have done for a number of years, I know and understand the reality when it comes to online activities of end users.

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Julissa on :

Having read this I thought it was very informative. I appreciate
you taking the time and effort to put this article together.
I once again find myself personally spending way too much time both reading and leaving comments.

But so what, it was still worthwhile!

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