iiNet Wins! AFACT Has To Pay. Australian Court Says ISPs Not Responsible For Infringing Users

from the good-news dept

Another victory for common sense. Down in Australia, we've covered the lawsuit filed by movie studios against popular ISP iiNet. The studios were upset that iiNet wasn't doing enough to stop unauthorized access to movies by its users. iiNet took a very strong pro-consumer stand, and pointed out that it had no reason to act as the movie studio's personal police force:
They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.
The company claimed further that based on Australian law, its customers actually weren't violating copyright law in trading files directly, since the law only covered distributing content "publicly" and a one-to-one trade is not "public." Furthermore, it argued that the studios' demand that it monitor its customers activities would violate Australia's telecom act and violate users' privacy rights.

Not surprisingly, a lot of folks have been waiting for the verdict and it's in! The court has ruled in favor of iiNet, saying that just because it provides access, it does not mean it is a party to infringement. Not only that, the court has told AFACT, the Australian anti-piracy organization that handled the case, that it needs to pay iiNet's legal fees. The ruling looks fantastic. Some snippets from the ITnews article linked above:
"I find that iiNet simply can't be seen as approving infringement," said Justice Cowdroy.

Justice Cowdroy found iiNet users had infringed copyright by downloading films on BitTorrent, but he found that the number of infringers was far less than alleged by AFACT.

More importantly, Justice Cowdroy said that the "mere provision of access to internet is not the means to infringement".

"Copyright infringement occured as result of use of BitTorrent, not the Internet," he said. "iiNet has no control over BitTorrent system and not responsible for BitTorrent system."

The fact worldwide piracy was rife "does not necessitate or compel a finding of authorisation, just because it is felt there is something that must be done", he said.
This is a huge victory for those who believe that the efforts by copyright holders to push secondary liability on ISPs is a very dangerous policy. It's great to see the court get this one right.


Reader Comments (rss)

(Flattened / Threaded)

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    Nicholas Young, Feb 3rd, 2010 @ 3:28pm

    Am I bad?

    This makes me want to move to Australia.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 3:37pm

    The blame the judge placed on bittorrent is a bit disturbing. I wonder what the evidence was against bittorrent.

     

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      Mike Masnick (profile), Feb 3rd, 2010 @ 3:55pm

      Re:

      The blame the judge placed on bittorrent is a bit disturbing. I wonder what the evidence was against bittorrent.

      Not clear that he's blaming BitTorrent. Looks more like blaming users for infringing.

       

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        Marcus Carab (profile), Feb 3rd, 2010 @ 4:21pm

        Re: Re:

        "Copyright infringement occured as result of use of BitTorrent, not the Internet," he said. "iiNet has no control over BitTorrent system and not responsible for BitTorrent system."


        There is something a little off about the language though, isn't there? Copyright infringement occured as result of their decision to infringe, independent of their methods - the way this is worded it literally reads as "BitTorrent made users infringe."

        Then by pointing out that iiNet has no control and is not responsible, the judge seems to imply that he thinks someone does and is.

        I suppose ruling on BitTorrent was outside the scope of this case, and I don't know much (well, anything) about Australian law, but isn't that the sort of ruling that could be used by the movie studios later in (for example) an attempt to block torrent websites or ban BitTorrent?

         

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          Anonymous Coward, Feb 3rd, 2010 @ 4:25pm

          Re: Re: Re:

          I'm not really sure it says that. If he had said "occurred as result of BitTorrent..." then yeah, probably, but he said "of use of BitTorrent."

          If this case existed 10 years ago and he had said "occurred as result of use of CDs [being traded]" I don't think anyone would read that as the judge blaming CDs for infringement.

           

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            Marcus Carab (profile), Feb 3rd, 2010 @ 4:37pm

            Re: Re: Re: Re:

            You're right, I'm not reading it right - I'm just not use to the legal language. He's stating that infringement occurred as a result of BitTorrent, basically meaning "via BitTorrent". I originally read it more as if it meant "users infringed as a result of using BitTorrent", which is of course not what it says.

             

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      Anonymous Coward, Feb 3rd, 2010 @ 4:11pm

      Re:

      Yeah, I'm pretty sure he was just saying that the infringers were using BT to do the infringing, and that iiNet has no control over BT, so suing them was silly.

       

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    Anonymous Coward, Feb 3rd, 2010 @ 4:07pm

    huzzah :)

     

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    Shadzzy, Feb 3rd, 2010 @ 4:30pm

    i think the quote is a little off, what Cowdroy actully said is "I find the mere provision of access to the Internet is not the means of infringement. There does not appear to be any way to infringe the applicant's copyright from the mere use of the internet. Rather, the means by which the applicant's copying is infringed is in iiNet users' use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system." so i think there may be issue for the us of bittorrent to obtain infinging content at some point but that will be againt an individual rather than an ISP

     

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      robin, Feb 3rd, 2010 @ 6:50pm

      Re:

      it seems to me that this judge understands that bittorrent is just a communication protocol (a computer to computer standard) much like http or ftp.

      iow, a tool, and how folks use that tool is up to them.

      smacking down big content's efforts to criminalize a communication standard is a huge victory.

       

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    diode, Feb 3rd, 2010 @ 4:34pm

    This is excellent news - massive congratulations to iiNet! :)

    It will be very interesting to see how everybody's favourite communications minister Stephen Conroy reacts to this verdict, given what he said about iiNet's defense case earlier.

    It will also be interesting to see how/if this effects Australia's stance on ACTA negotiations, given what has been leaked so far.

     

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      Anonymous Coward, Feb 3rd, 2010 @ 5:17pm

      Re:

      I imagine the lobbyists will just get their bribery budgets increased and ACTA will proceed as normal (in secret).

       

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    Johnno, Feb 3rd, 2010 @ 4:39pm

    To all those people saying they want to move here to Australia, I say no you don't. It is the most over governed and over taxed country in the world. With a government that wants to introduce mandatory filtering for the internet!.

    BTW...Good win iiNet, well done...For once Justuce prevailed...but for how long is to be seen........

     

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      likeyoucare, Feb 8th, 2010 @ 8:58pm

      Re:

      @Johnno
      Such ignorance is astonishing. Australia is most certainly NOT the most "over taxed" nor the most "over goverened".

      "over taxed": According to the OECD, they are not even in the top 10, especially if you're talking about personal income tax, and in fact are slightly lower when compared to the US (corporate tax is slightly higher. slightly!).

      "over governed": It's not China!

      As for the filtering, that's one idiot with an agenda; it won't happen.

      Every single Australian, every one of them, has access to free and/or subsidised health care; people don't sue other people at the drop of a hat for ridiculous reasons; people don't have guns under their beds and in their closets; geographically they are about as far away from the US as they can possibly get; the climate rocks; the beaches are superb; the food is fresh and the wine sublime; there is no obsession with god or cultism; there are no whacko freakin nutjobs that deny facts such as evolution, the benefits of immunisation, or the superiority of science over ignorance; and nobody gives a shit if you say shit on tv.

      I'd suggest a move to Aussie-land would be the best decision anyone ever made.

       

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    Shadzzy, Feb 3rd, 2010 @ 4:44pm

    just if your interest heres a link to the judgement

    http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html

     

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    DH's Love Child, Feb 3rd, 2010 @ 5:28pm

    Did anyone else notice the the soud of crickets...

    from TAM?

     

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      Anonymous Coward, Feb 3rd, 2010 @ 5:40pm

      Re: Did anyone else notice the the soud of crickets...

      When your principled position is comprised on a bedrock of sand, it's kind of difficult to argue against the inevitable.

       

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      Anonymous Coward, Feb 4th, 2010 @ 6:11am

      Re: Did anyone else notice the the soud of crickets...

      Who cares

       

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    Igor Zevaka (profile), Feb 3rd, 2010 @ 5:32pm

    Didn't expect such complete victory for iiNet

    The court even awarded ISP's legal costs to be paid by the applicants, that's pretty massive. From memory iiNet spent in the vicinity of AU$4M for their defence. I expect some hardcore lobbying for the three strikes law from now on.

     

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      vm, Feb 3rd, 2010 @ 9:07pm

      Re: Didn't expect such complete victory for iiNet

      It's standard to award legal costs to the winner - you can't read anything in to that. Also this is just round 1 of what could be a 3 round contest. Winner takes all.

       

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    The Anti-Mike (profile), Feb 3rd, 2010 @ 6:11pm

    Justice Cowdroy found iiNet users had infringed copyright by downloading films on BitTorrent, but he found that the number of infringers was far less than alleged by AFACT

    I think this is the most interesting - the judge can see the infringing, but chooses to do nothing.

    I smell an appeal, if it is still possible.

     

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      Anonymous Coward, Feb 3rd, 2010 @ 6:13pm

      Re:

      Umm, he "chooses to do nothing" because the lawsuit was about the ISP, who isn't doing anything wrong.

      ...except in your fantasy land.

       

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        Brian (profile), Feb 3rd, 2010 @ 6:44pm

        Re: Re:

        Hey, don't attack his fantasy land! He needs a happy place to go so he can feel that injustice is being done and false blame being placed somewhere regardless of if its based in reality or imagination land :P

         

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      Mike Masnick (profile), Feb 3rd, 2010 @ 7:31pm

      Re:

      I think this is the most interesting - the judge can see the infringing, but chooses to do nothing.


      Uh, no. The judge sees the infringement AND sees that it's the users infringing, not the ISP. Odd that you gloss over that rather important fact.

       

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        The Anti-Mike (profile), Feb 4th, 2010 @ 2:29am

        Re: Re:

        No, I don't gloss over the fact.

        I can only think of a bodega owner that allows people to sell drugs out of his store. At some point, the police will come and not only arrest the drug dealers, but they will arrest the store owners as well.

        The ISPs, when unaware, are in the clear. Once they are aware, are they truly innocent anymore?

        Like I said, I think that there is plenty to appeal in the decision, because it is clear that illegal activities are going on, and the ISP does have the power to stop them.

         

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          john, Feb 4th, 2010 @ 5:57am

          Re: Re: Re:

          Youre missing the point the ISP has no power and no obligation under australian law to prevent copyright infringement.

          A private commercial entity is conducting its own "investigations" and then forwarding IPs to the ISP and expecting said ISP to act.(re read the first paragraph)

          So the ISP passes the complaints on to the police who do have the power to conduct investigations and initiate criminal prosecutions the police have not been acting on this "evidence" for some reason.(they don't care)

          Given the police are aware of what is going on I smell an appeal.(flogging a dead horse)

           

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          Jeff, Feb 4th, 2010 @ 7:13am

          Re: Re: Re:

          Ok, lets put your theory to another similar situation.

          So what you are saying is that if a guy is selling drugs from his apartment, then the apartment owners and the managers should go to jail too. After all they were living in the apartment and it was up to the apartment owners / managers to monitor their tenants at all times to make sure they are not doing something illegal. Or better yet, the guy is smoking a joint in the apartment, they should have a camera in each apartment to monitor this and then kick him out and make sure the guy is never able to move into any other house or apartment ever again.

          So the owners and managers should do everything to monitor each and every person because they own the place and have the power to stop them too!?!

           

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            Jeff, Feb 4th, 2010 @ 7:21am

            Re: Re: Re: Re:

            Ok, lets put your theory to another similar situation.

            So what you are saying is that if a guy is selling drugs from his apartment, then the apartment owners and the managers should go to jail too. After all they were living in the apartment and it was up to the apartment owners / managers to monitor their tenants at all times to make sure they are not doing something illegal. Or better yet, the guy is smoking a joint in the apartment, they should have a camera in each apartment to monitor this and then kick him out and make sure the guy is never able to move into any other house or apartment ever again.

            So the owners and managers should do everything to monitor each and every person because they own the place and have the power to stop them too!?!


            And maybe we should through every tax payer in each city in jail too. After all they pay for the streets. We know that they should monitor the drivers of every car, and if a driver is speeding, or running a light. Well that makes the owners of those streets just as responsible as well.


            Get it yet? Just because you provide a service, doesn't mean you are responsible if someone abuses that service. Yes you can disconnect a user of your service if they do something wrong, but it doesn't mean you have to be the police and enforce the law yourself.

             

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      Anonymous Coward, Feb 3rd, 2010 @ 8:04pm

      Re:

      Yeah, and if I see a murder, it doesn't mean I get to arrest the first Joe-Schmoe I stumble across.

      Apparently TAM wants people to be liable for crimes they had no involvement in. Always nice to know where you stand, TAM.

       

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        The Anti-Mike (profile), Feb 4th, 2010 @ 3:51am

        Re: Re:

        If you think that the ISP had no part at all in the infringement, absolutely 0% influence on it, then you are right.

        But gee, without the internet connection.... ;)

         

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          Anubhav Chattoraj, Feb 4th, 2010 @ 4:27am

          Re: Re: Re:

          Without the hand, thou canst not physically steal.

          But America still opposes cutting off shoplifter's hands, for some reason...

           

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          Anonymous Coward, Feb 4th, 2010 @ 7:24am

          Re: Re: Re:

          Honestly, sometimes I don't even think you read the crap you're spewing.

           

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          Anonymous Coward, Feb 4th, 2010 @ 7:29am

          Re: Re: Re:

          But gee, without the computer... Sue the manufacturer!
          But gee, without the web browser... Sue its developers!
          But gee, without an OS... Sue!

          Oh, don't forget to sue search engines!
          Also, the creator of BT should be used, along with the creator of whatever torrent client was used!
          Oh, and that guy who invented the internet, yeah, sue him too!

           

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          robin, Feb 4th, 2010 @ 9:41am

          Re: Re: Re:

          But gee, without the internet connection.... ;)


          tam-tam fails again.

          (classic pr/lobbyist language: first agree, then hint at the opposite of your agenda, denigrating it so that by implication your agenda appears reasonable. source: go read "thank you for smoking".)

          the judge pointed out expressly this point:

          More importantly, Justice Cowdroy said that the "mere provision of access to internet is not the means to infringement".

           

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            Anonymous Coward, Feb 4th, 2010 @ 10:12am

            Re: Re: Re: Re:

            Yeah, but some judge in America called copyright infringement stealing so that's true. And Trent Reznor called it stealing and he's a rock star, so that has to be true as well.

             

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          www.eZee.se (profile), Feb 4th, 2010 @ 10:22am

          Re: Re: Re:

          > But gee, without the internet connection.... ;)

          You're stopping a bit short...

          first sue the people running the power grid... because:

          But gee, without the electricity.... ;)

           

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            Anonymous Coward, Feb 4th, 2010 @ 11:56am

            Re: Re: Re: Re:

            No, you're wrong too. We should actually be suing the movie industry, because...

            "But gee, without the movies to pirate in the first place..."

             

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          Anonymous Coward, Feb 4th, 2010 @ 12:01pm

          Re: Re: Re:

          I'll be sure to forward any lawsuits against you to your mother.

          After all, if she'd never given birth to you.... ;)

           

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    The Mad Hatter (profile), Feb 3rd, 2010 @ 6:18pm

    Anyone want to bet that the ACTA push gets stronger?

    Maybe I'm a bit paranoid, but I think that this is what will happen.

     

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    Hephaestus (profile), Feb 3rd, 2010 @ 6:45pm

    Neat

    "AFACT will spend the next few days deciding whether to appeal," AFACT -v- iiNet

    "RIAA will decide in the next few days whether to appeal" riaa -v- tenenbaum

    etc, etc

    And slowly the tides will turn or there will be a public out cry.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 7:19pm

    I'm from Australia, I love all the talk on here about snakes and spiders etc. The fact is yes we have deadly animals but they don't really bother us day to day.

    I guess we are bought up with spiders around the home (odd one here or there) and are used to it, snakes and other animals normally stay away from people and only really attack if confronted, I can't remember the last time I saw a snake actually.

     

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      Big Al, Feb 3rd, 2010 @ 9:50pm

      Re:

      Nothing gets the blood pumping like stumbling out of the bedroom on Sunday morning and finding a three-foot Brown Snake curled up on the family room floor.
      Problem was, being Sunday the snake-catcher charged us $160 to get rid of it...

       

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      Yeebok (profile), Feb 3rd, 2010 @ 10:02pm

      Re:

      Agreed. I have suffered more pain from wasps and bees than the native fauna. I've been here 38 years, and in the wild, seen one funnel web (they're scarily aggro nutters), no snakes, no blue-ringed octopii and no box jellyfish or platypii. There's probably 20 redbacks within 10 feet of me (PC's in the garage) but once they make their web they don't really move, if they do they're not fast, and you can squash them really easily. I just remember to check my motorcycle boots and gloves before *every* use.

      I'd be more worried if we had bears and wolves to be honest but then again familiarity makes them seem less dangerous I guess too.

       

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        Dementia (profile), Feb 4th, 2010 @ 4:22am

        Re: Re:

        I have seen bears within a couple of miles of my house, but unlike the ones that live in the tourist areas of national parks, they pretty much stay away from inhabited areas. Wolves are just getting established again in this area, and they do pose a bit of a threat, but not to much at this point.

         

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    identicon
    :), Feb 3rd, 2010 @ 7:42pm

    Bitchslap!

    Slap! Slap!

     

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    Thomas (profile), Feb 3rd, 2010 @ 8:09pm

    "I think this is the most interesting - the judge can see the infringing, but chooses to do nothing."

    Keye Luke voice "No no craphopper .. You misunderstand. The judge saw the infringing, and he absolutely did something. He acted decisively and with great wisdom. He struck down the enemy of free speech and fair use with measured and appropriate force. He chose not to waste his energy attacking the straw men decoys, but use his knowledge and skill to dispatch the true evil. Power is dangerous and destructive if not tempered by wisdom and knowledge. You must learn this lesson, craphopper if you are to advance.

     

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    Anonymous Coward, Feb 3rd, 2010 @ 9:43pm

    Purveyors of BT clients at this time may not be particularly enamored with the decision as it seems to suggest they may bear some measure of liability under Australian law. It is not clear the extent to which this potential liability may apply to BT trackers.

    It was surprising to see the numerous references to US statutory and case law. Ask most lawyers in the US about Justice Ginsburg's recent reference to relying in part on foreign cases and you will most likely receive a "What the H*** is she thinking? No way!".

    Re attorney fee awards, Australia, unsurprisingly, follows what is known as the "English Rule", i.e., the loser pays. This is not the law in the US except in very limited circumstances.

    I was also quite surprised to see what appears to be the general structure of a lower court opinion in Australia. It makes US court decisions appear sparse and succinct in comparision.

    Finally, like any court case opinions are rendered based upon the evidence presented and how that evidence stacks up against what is required by law. Quite possibly a second ISP in any future litigation might not be as fortunate as this ISP.

     

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    diode, Feb 3rd, 2010 @ 10:55pm

    Connect the dots

    Stephen Conroy (Australian Communications Minister), 3rd December 2009:
    "We are just waiting to see the outcome of the case,” he [Conroy] said. “The court case may settle this issue… It may show to the world ISPs have got the responsibility to work with copyright owners to work out a solution or to monetise a solution.”
    “We are waiting for the outcome of that before we make any calls about whether we need new legislation or not”

    Source: http://www.arnnet.com.au/article/328529/conroy_holds_his_breath_iinet_v_afact_verdict

    Neil Gane (Executive Director, AFACT), 4th February 2010:
    "...we believe this decision was based on a technical finding centered on the Court’s interpretation of the how infringements occur and the ISPs’ ability to control them. We are confident that the Government does not intend a policy outcome where rampant copyright infringement is allowed to continue unaddressed and unabated via the iiNet network"

    Source: http://www.arnnet.com.au/article/335094/afact_blames_technical_intepretation_loss_against_iinet

    - ---

    This seems to paint a pretty clear picture. With iiNet found innocent under current Australian law, expect an announcement from Conroy regarding a new law to make them guilty.

     

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    David Gerard (profile), Feb 4th, 2010 @ 12:47am

    TIN PAN VALLEY, The Matrix, Wednesday Film companies today expressed their disappointment that the Federal Court found that iiNet was not using orbital mind control lasers to encourage copyright infringements by its customers on its network.

    Despite findings of copyright infringement by iiNet customers, pirate flags in their front yards and downloaded cars in their driveways, iiNet did not authorise the acts of its customers, merely sitting back and watching the tens of dollars rolling in to feather their own nests at the expense of the poor beleaguered major record companies and film studios.

    Australian Federation Against Copyright Theft executive director, Neil Gane, said he was disappointed by the Court’s decision. "Today’s decision is a setback for the 50,000 Australians employed in the film industry, who work hard to send money to America as fast as possible. But we believe there's something not quoite roight about this ruling it was based on a mere technical loophole centred on the court's interpretation of what the law technically says in actual words and original intention, rather than what it should say. That the judge told us several separate ways in which our case failed utterly to make any sense at all is clear evidence of radical judicial activism and dangerous legislating from the bench.

    "We are confident that the government does not intend a policy outcome where zombie hordes of drooling open source copyright terrorists led by the evil genius Michael Malone are allowed to continue feasting upon the flesh of the living via the iiNet network.

    "We will now take the time to review the decision before seeing if we can bribe enough federal politicians to get a law more to our liking."

    - just posted by me at http://is.gd/7EtMY

     

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    annarkkista, Feb 4th, 2010 @ 5:32am

    Stealing or sharing?

    @ Anti-Mike,
    I'm impressed at your command of Paint (Photoshop is way over your 'expertise'). Taking Mike's picture and doing a reverse and flip is really an amazing task for a computer-challenged individual.

    Here's my question - was that stealing? or sharing?

     

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      Anonymous Coward, Feb 4th, 2010 @ 6:14am

      Re: Stealing or sharing?

      Send him a pre-settlement letter

       

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      RD, Feb 4th, 2010 @ 7:23am

      Re: Stealing or sharing?

      "Here's my question - was that stealing? or sharing?"

      Well, clearly, its theft. He STOLE Mike's pic, had the gall to CHANGE it, amd then, THEN, in a final coup de grace F-U to rights holders EVERYWHERE, he USED THE IMAGE HIMSELF!!

      It makes him a complete hypocrite. He does the SAME thing that he accuses everyone else of, something that he says is "wrong", "theft" and "illegal", yet he justifies it by "well, since everyone is doing it" or "its only one small pic and its making a point." quite ignoring that these same arguments are used ALL THE TIME in the same manner, to which he INSISTS the death penalty is a "reasonable measure" to combat this "scourge of thievery."

       

      reply to this | link to this | view in chronology ]

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    senshikaze (profile), Feb 4th, 2010 @ 7:16am

    what the hell Australia?

    make up your damn mind whether you are going to be for or against your citizens. This kind of teasing isn't fair!

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Dave, Feb 4th, 2010 @ 12:22pm

    Great

    Damn good show, sport! Pity the ruling doesn't apply globally. Might have taken some steam out of Mandy's digital economy bill here in the UK, which should be cut off at the knees. Still, a test case might be the answer.

     

    reply to this | link to this | view in chronology ]

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    identicon
    Epsyle, Feb 4th, 2010 @ 5:29pm

    Still no quite sure how to react to how people veiw us Aussies lol...

     

    reply to this | link to this | view in chronology ]


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