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The entertainment cartels never give up. They identified online freedom and openness as deadly enemies of their bottom lines and decided individually and collectively to crush them by any and all means, the Grokster ‘decision’ being one of the most blatant and infamous examples.Vivendi Universal, EMI, Warner Music and Sony Music, the most strident and vicious elements, targeting their own customers as criminals and thieves, and Disney, News Corp, Time Warner, Viacom, NBC Universal and Sony Pictures, who chiefly zeroed in on indexing sites, have limitless financial and legal resources, obscene political connections.Traditionally, they’ve held their ‘consumer’ bases under iron control, feeding them corporate ‘product’ through distribution channels they own and operate. Then along came the internet, allowing ‘consumers’ to again become discerning customers with free will and free choice. The cartels have been trying to turn it into their own exclusive online distribution network, but they’ve failed miserably and are now hated and despised around the world.Their last-ditch effort is to use compliant governments and politicians to have ACTA and its Three Strikes and you’re Off The Net element instituted The Law in various lands. Under it, ISPs would be copyright enforcers with their own customers as targets, and people accused by the cartels of being file sharers would have their online accounts disconnected. In Australia, a lone ISP has decided its customer are more important than Hollywood demands. It has won at every turn and the cartels have been ordered to pay costs of $4,000,000.Now in what could be the final round, Hollywood’s AFACT has appealed the ruling.Over in Oz Filip is following events and sends this headline round up >>>AFACT: Shape, prevent or playpen, but iiNet did nothing Enforcer fingers prolific copyright infringer, Computerworld, August 2, 2010The Australian Federation Against Copyright Theft (AFACT) has told the Federal Court in an appeal hearing that iiNet should have shaped, blocked or play-penned subscribers who infringed copyright. But iiNet lawyers told Computerworld Australia yesterday that such claims could not be considered in the appeal hearings this week because they were not introduced into evidence during the first Federal Court bout.Appeal Day 1: Film industry says ISP should use automated IT systems, IT News, August 2, 2010ISP iiNet should not rely on the magnitude of matching alleged evidence of copyright infringements to user information as a reasonnot to act on piracy, the film industry’s lead barrister told the Federal Court today. The ISP has long argued it is unable to match the IP address and time data supplied by film industry investigators to customer details stored in its databases due to existing privacy laws. This became known as the ‘telco defence’, and was not accepted in the judgement handed down in February by Justice Cowdroy.AFACT: iiNet regularly communicated with infringing customers, ARN,August 2, 2010AFACT barrister, David Catterns, has pointed to iiNet chief, Michael Malone’s testimony in the original hearing, during early comments in the copyright case’s appeal hearing in the Full Federal Cour. Malone had admitted in court the information, including IP addresses and times of alleged copyright infringements by customer accounts, given to iiNet by AFACT was “compelling evidence”.AFACT: iiNet punishes spammers but not pirates, ARN,August 2, 2010The ISP had internal policies dealing with customers making threatening calls and spammers but not for film pirates. The Australian Federation Against Copyright Theft (AFACT) has claimed iiNet punishes spammers but not copyright infringers in the first day of the copyright case’s appeal hearing in the Full Federal Court. AFACT barrister, David Catterns, argued that iiNet failed to take any steps to stop film piracy activities by its subscribers. He referred again to the 1975 Moorehouse case concerning an educational institution which was taken to court for copyright infringement of books through students’ use of photocopiers. According to Catterns, the Copyright Act was amended as a result of the Moorhouse case so the person or organisation providing the facility to infringe copyright would not be held accountable unless an act of authorisation is committed.AFACT: iiNet stops spam, why not The Pirate Bay?, Computerworld, August 2, 2010The copyright enforcement arm of a string of film studios has told a Federal Court hearing today that Internet service provider iiNet had authorised customers to download illegal movies partly by not “stopping” the infringements. Australian Federation Against Copyright Theft (AFACT) legal representative, David Catterns, told a panel of three Federal Court judges that iiNet failed to take steps to prevent copyright infringement, despite having an “analogous” scheme in place to combat spam. “There are a number of steps short of terminating an account that [iiNet] could have done including warnings. iiNet has a graduated response to spam… we proved there were other reasonable steps in place,” Catterns said in the Federal Court of Australia today. “[iiNet] clearly had the right to control what happened here… the nature of relationship, a broad idea, includes a contractual [technical] relationship between ISP and person who has the account. “This is a significant case because it relates to Internet and uses and balance of rights and responsibilities between ISPs and customers.”Appeal Day 1: New AFACT lead barrister states the film industry case, IT NewsThe film industry has submitted that it is “not desirable” to sue individual internet users alleged to have infringed copyright, returning to a discussion of “authorisation” during opening submissions to the full bench of the Federal Court. As the appeal case between the Australian Federation Against Copyright Theft (AFACT) and ISP iiNet entered day one, the film industry’s lead barrister David Catterns QC submitted that the Copyright Act allowed the studios to sue an alleged “authoriser” of the infringing activity rather than the “primary infringer” – the individual users. “There’s no person to sue in Australia for BitTorrent, but it’s wrong to say we have to sue the primary infringer,” Catterns submitted. “The whole structure of the [Copyright] Act is that there’s an alternative person that can be held responsible. We have no way of detecting these individuals. Rather than having to sue them, the Act under section 101 enables you to sue the authoriser. “We submit that’s important. It’s not desirable to be suing individuals time after time.”That’s not cooperation, that’s an attempt at coercion’It’s also worth repeating the recent iiNet Open Letter fromits CEO, Steve Dalby.“It is with interest that I notice your headline in … CommsDay (’AFACT: ISPs would benefit from industry code on copyright infringement’) and couldn’t resist an opportunity to fill in some of the obvious gaps”, he wrote, continuing >>>Unfortunately, I wasn’t in attendance at the conference, but will happily rely on your report of the comments.The quotes reinforce the position taken by the private investigators in AFACT and MIPI. AFACT’s poor attempts to present itself as the voice of reason are belied by their ongoing negative and unproductive behaviour. This disconnection from reality is not difficult to spot.During the hearings in October last year, correspondence between the two industry representatives (IIA and AFACT) was tabled as evidence.This correspondence showed a genuine desire by the IIA to explore the issues presented and an absolute ’smack-down’ by AFACT in a letter signed by Adrienne Pecotic. AFACT are quite dishonest when they call for cooperation. Their private actions absolutely contradict their public statements. It is in this atmosphere of bad faith and dishonesty that AFACT continue to preach to the world.We remain committed to working with content owners, and we are proud that we continue to lead the way with numerous content deals for the benefit of our customers – but we prefer to negotiate commercials with content owners directly.AFACT have made it very clear – their idea of cooperation is for ISPs to disconnect our customers when they demand it. If we don’t do their bidding they’ll tie ISPs up in the courts.That’s not cooperation, that’s an attempt at coercion and is, therefore, a poor model for a commercial relationship or an industry code of conduct.At another level, the MIPI representative is reported as “…citing a number of successful overseas initiatives…” If this is not a mistake it could be an attempt to mislead, not that we should be surprised at that.Sure – there are changes being introduced or debated in other jurisdictions – but guess what? None of them are anything similar to the demands for disconnection put forward by the likes of AFACT in Australia.Let’s take them one at a time, based on what is publicly available and online.Australia: AFACT will tell ISPs who to warn and when to disconnect them. ISPs will bear the total cost of the process, including the risk of retaliation by affected customers. No judicial oversight is contemplated. AFACT made it clear in the correspondence tabled in the courts that this position is not negotiable.France: The Constitutional Court has deemed that access to the internet is the equivalent of access to education and cannot be denied. Only a judge can determine when, or if, a service should be disconnected.UK: An on again-off again debate has led to an OfCom discussion paper which makes it clear that:a) Courts are the appropriate bodies to determine whether ISPs should match the identities of customers with IP address details;b) A government body will be created in OfCom to deal with customer enquiries and appeals, should the scheme come into being;c) Participants in any future scheme will be required to meet quality certification requirements before acceptance; andd) That the parties must enter into commercial agreements to determine reasonable levels of notifications and the distribution of costs (including compensation to customers for inaccurate allegations). The costs are to be pre-paid by content owners to ISPs.Sweden: Court orders can now be obtained to obtain the identities of customers from IP address details, for the purpose of private prosecution by copyright owners;Ireland: After compromising internal Eircom emails came to light, the parties agreed to a commercial settlement. The only involvement of the courts was to confirm the resulting commercial agreement did not breach privacy laws and was, therefore, legal.South Korea: New legislation gives the South Korean courts power to impose six months suspension of internet access after due process.It is interesting then that AFACT and MIPI point to these as examples of the way it should be in Australia. The law in Australia already allows copyright owners to use the courts to firstly, determine the identity of the users of certain IP addresses and, secondly, allows those owners to then prosecute their claims through the courts, as is now the case in the UK, France, Sweden and South Korea.What are AFACT and MIPI waiting for?The answer is, of course, that although those other countries may be held up as shining examples of the way forward, those jurisdictions require the copyright owners to actually do something to protect their rights, rather than just make public pronouncements.This does not fit with AFACT’s view of the world. In that view, ISPs take all the risks, all the costs and AFACT takes all the benefit. (See also our paper on ‘Hollywood Dreams’)To end on a positive note, “we’ll say it again – we will happily sit down with any and all content owners to discuss ways to make their desirable content available to our customers, legally and commercially”, Dalby stresses, adding:“We’ll do that individually, or as part of industry initiatives, but that needs to be done in good faith and with a genuine desire for success.”Sadly, Steve, concepts of “good faith” and a “genuine desire for success” are anathemas to AFACT, and all the other Hollywood ‘trade’ units, said p2pnet.
AFACT’s poor attempts to present itself as the voice of reason are belied by their ongoing negative and unproductive behaviour. This disconnection from reality is not difficult to spot.We remain committed to working with content owners, and we are proud that we continue to lead the way with numerous content deals for the benefit of our customers – but we prefer to negotiate commercials with content owners directly.AFACT have made it very clear – their idea of cooperation is for ISPs to disconnect our customers when they demand it. If we don’t do their bidding they’ll tie ISPs up in the courts.At another level, the MIPI representative is reported as “…citing a number of successful overseas initiatives…” If this is not a mistake it could be an attempt to mislead, not that we should be surprised at that.AFACT will tell ISPs who to warn and when to disconnect them. ISPs will bear the total cost of the process, including the risk of retaliation by affected customers. No judicial oversight is contemplated. AFACT made it clear in the correspondence tabled in the courts that this position is not negotiable.... those jurisdictions require the copyright owners to actually do something to protect their rights, rather than just make public pronouncements.This does not fit with AFACT’s view of the world. In that view, ISPs take all the risks, all the costs and AFACT takes all the benefit. (See also our paper on ‘Hollywood Dreams’)To end on a positive note, “we’ll say it again – we will happily sit down with any and all content owners to discuss ways to make their desirable content available to our customers, legally and commercially”, Dalby stresses, adding:“We’ll do that individually, or as part of industry initiatives, but that needs to be done in good faith and with a genuine desire for success.”Sadly, Steve, concepts of “good faith” and a “genuine desire for success” are anathemas to AFACT, and all the other Hollywood ‘trade’ units, said p2pnet.
