Hollywood Loses Its Big Copyright Lawsuit Against ISP iiNet Down Under

from the secondary-liability dept

Well, here's some good news on the copyright front down under in Australia. You may recall that, back in 2008, a bunch of Hollywood studios (along with two Australian movie studios, just to make it seem "local") sued Australian ISP iiNet for failing to "do enough" to stop infringement. As far as we can tell, Hollywood basically wanted iiNet to wave a magic wand. We later learned, thanks to a US State Department cable leaked via Wikileaks that, not only was the MPAA really behind the lawsuit (though it tried to keep its involvement secret), but that it chose iiNet (the third largest Australian ISP) on purpose: they were "big enough to be important" but not big enough to have the resources to fight back (in the tangled mind of the MPAA). This, like so many MPAA actions these days, turned out to be a serious miscalculation.

iiNet fought back, and fought back hard -- and won at every single level in the court system, including today's High Court ruling that effectively ends the case. Oh yeah, the High Court also says that Hollywood has to pay iiNet's legal expenses -- approximately $9 million.

From the beginning, contrary to the MPAA's assumption, iiNet fought back hard. Beyond the obvious, which was pointing out that as a service provider it was not responsible for its users' actions, iiNet also protested that the notices the MPAA's anti-piracy front group AFACt, was sending were deficient:
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 original district court ruling was fantastic, and did such a great job illustrating why it makes no sense to blame third party service providers for infringement -- because infringement is not an absolute, but requires a court to decide what really is infringement. As the original ruling stated:
Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.
In other words, just because someone accuses someone else of infringement, it's ridiculous for the ISP to automatically assume infringement has taken place. That turns the basic concepts of due process on their head. AFACT/MPAA appealed and lost again, with the court once again pointing out that general knowledge that someone on your site infringes is not nearly enough to terminate or suspend users.

This latest (and final) ruling basically takes the same stance. The full ruling is a bit dry, but makes some salient points. It notes, for example, that as a mere ISP, iiNet has absolutely nothing to do with BitTorrent and can't control the fact that some of its subscribers used BitTorrent. It also notes that iiNet was not hosting any of the material, nor doing anything with the infringing material. On top of that, it notes the pointlessness of AFACT/MPAA insisting that iiNet has to kick people off the internet:
Termination of an iiNet account with a customer who has infringed will assuredly prevent the continuation of a specific act of communicating a film online using a particular .torrent file on a particular computer. Regrettably, however, on receiving a threat of such termination, it is possible for a customer to engage another ISP for access to the internet on that computer or access the internet on another computer using a different ISP. Whilst any new infringement would be just as serious as the specific primary infringements about which the appellants complain, this circumstance shows the limitations on iiNet's power to command a response from its customers, or to prevent continuing infringements by them.
And, once again, the court finds that mere notice of infringement certainly is not proof of infringement, and requiring iiNet to investigate further is too big a burden:
Updating the investigative exercise in the AFACT notices would require iiNet to understand and apply DtecNet's methodology – which, among other things, involved a permission to DtecNet from AFACT to use the BitTorrent system to download the appellants' films. Before the filing of experts' reports in the proceedings, the information in the AFACT notices did not approximate the evidence which would be expected to be filed in civil proceedings in which interlocutory relief was sought by a copyright owner in respect of an allegation of copyright infringement. Also, any wrongful termination of a customer's account could expose iiNet to risk of liability. These considerations highlight the danger to an ISP, which is neither a copyright owner nor a licensee, which terminates (or threatens to terminate) a customer's internet service in the absence of any industry protocol binding on all ISPs, or any, even interim, curial assessment of relevant matters.

iiNet's inactivity after receipt of the AFACT notices was described by the appellants as demonstrating a sufficient degree of indifference to their rights to give rise to authorisation. However, the evidence showed that the inactivity was not the indifference of a company unconcerned with infringements of the appellants' rights. Rather, the true inference to be drawn is that iiNet was unwilling to act because of its assessment of the risks of taking steps based only on the information in the AFACT notices. Moreover, iiNet's customers could not possibly infer from iiNet's inactivity (if they knew about it), and the subsequent media releases (if they saw them), that iiNet was in a position to grant those customers rights to make the appellants' films available online.
All in all, this is a good ruling concerning copyright and secondary liability -- and a bunch of money down the drain for the MPAA, who could have spent this time helping its studios to innovate, but has instead focused on this quixotic legal strategy.

Of course, it doesn't sound like this ruling will have the MPAA come to its senses either. The AFACT front group is already claiming that the ruling means Australia must change its laws to turn ISPs into copyright cops:
The Australian Federation Against Copyright Theft (AFACT) is ramping up the pressure on the government to act. It said today's judgment exposed the failure of copyright law to keep pace with the online environment and the need for the government to act.

"It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks...," AFACT managing director Neil Gane said.
No, Neil, it's not Australian law that's the problem. It's reality, and the fact that the movie studios refuse to bother to understand how the internet works and how they can adapt. No law will fix this. It will only make things worse. And Gane and the MPAA should be careful, lest they think they can try to pass another SOPA down under. I get the feeling that won't go over well.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Mike C. (profile), Apr 20th, 2012 @ 6:57am

    General knowledge "rule"

    You know, the more I hear the MPAA and RIAA push the "general knowledge" rule, the more I think they and their member companies need to implement it internally first. For example, if they have general knowledge that certain music artists have infringed - they need to be dropped from the label (lose their accounts). They can just find another label, right? And if the MPAA has general knowledge that a studio has infringed, they need to ban the studio from MPAA membership. They can just join or create another trade group, right?

    After all, "what's good for the goose is good for the gander"...

    /I know, never happen. Would still love to see the bluster and outraged looks on their faces if presented with the idea.

     

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  2.  
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    Anonymous Coward, Apr 20th, 2012 @ 7:18am

    'It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks...," AFACT managing director Neil Gane said.'

    typical entertainment industries attitude.

    'it isn't anything to do with us or what we're doing. it's to do with everyone and everything else not doing what we want to protect the shit we keep dishing out at exorbitant prices and expect everyone to buy.'

    for Christ's sake get a grip you lot, will ya? why should you stay the same, expect everyone else to go BACK, rather than advance with technology, just so you can keep milking the public to your hearts content?

     

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    The Spork (profile), Apr 20th, 2012 @ 7:20am

    Score one for the good guys

    Copyright monopoly 10, Civil liberties 1

     

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    Ima Fish (profile), Apr 20th, 2012 @ 7:24am

    "The AFACT front group is already claiming that the ruling means Australia must change its laws to turn ISPs into copyright cops"

    I've written this song before:
    Every time the copyright industry is faced with competition, they sue. If they cannot sue, they have laws passed so they can sue. If they cannot have federal laws passed to suit their needs, they have state laws passed instead. If the canít get a government to pass the laws they want, they have treaties enacted which force all governments to pass the laws they want.

    Second verse, same as the first.

     

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    Anonymous Coward, Apr 20th, 2012 @ 7:25am

    "It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks...," AFACT managing director Neil Gane said.

    Nothing is capable of "protecting" content once it hits the internet and peer-to-peer networks. If content is on the internet, it will be shared. That is the way the world works.
    But what really kills me is the word protecting, as if being locked down was what was best for content.

     

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    Anonymous Coward, Apr 20th, 2012 @ 7:26am

    Re: Score one for the good guys

    The "Good Guys" are still unfortunantly behind, but I think they have scored more than once recently.

     

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  7.  
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    Zakida Paul (profile), Apr 20th, 2012 @ 7:35am

    This is good, the Youtube verdict in Germany is bad.

    http://www.bbc.co.uk/news/technology-17785613

    Every good decision is cancelled out by several bad ones.

     

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    Zakida Paul (profile), Apr 20th, 2012 @ 7:35am

    This is good, the Youtube verdict in Germany is bad.

    http://www.bbc.co.uk/news/technology-17785613

    Every good decision is cancelled out by several bad ones.

     

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  9.  
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    TtfnJohn (profile), Apr 20th, 2012 @ 7:47am

    Re:

    Germany seems to be a hotbed of bad decisions on "IP" issues. Or at least some courts and states seem to be. The West Texas of Europe, as it were.
    Ironically the Hamburg court is located in the very city that uses open source software to conduct all its business. Not that there's a direct connection between the two but it is ironic.

     

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    Anonymous Coward, Apr 20th, 2012 @ 7:51am

    @ #7

    and as per usual, everyone suffers. if GEMA think they will be exempt, they are stupid. if there is less stuff uploaded, there is less listened to, which leads to less sold, less royalties to artists (not that GEMA gives a toss about them) but also less to GEMA themselves. good win guys!

     

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    Anonymous Coward, Apr 20th, 2012 @ 7:51am

    Re:

    Funny, I was just about to post this. I love when Mike gets all one sided and only posts up the "sunshine and happiness" stories.

    The Australian court ruling is lacking, because it fails to explain how to deal with this sort of situation in a way that is meaningful for everyone. Just legally throwing up your arms and saying there is nothing to do is not acceptable.

    My guess is Aussie laws will be changed to address this problem.

     

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    lexieliberty (profile), Apr 20th, 2012 @ 7:54am

    Tunnel Content

    If you go into this dark disconnected tunnel, you can buy your entertainment for a lot of money.

    thats how they think! a lot of people say well they are evil but they know what they are doing. honestly, i can't believe that, they are very stupid.

     

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  13.  
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    Anonymous Coward, Apr 20th, 2012 @ 8:06am

    Boycott!! At the risk of repeating myself:

    One tiny win is a waste of effort and nothing to celebrate.

    It should be clear from this and many, many other current prosecutions and persecutions that no less than the top levels of the us government (you know, the county with all the bombs) have been corrupted by mafiaa evil. They are at war with the public.

    Would the corrupt us regime of the minute even be doing this if an election wasn't coming this year for which they need millions upon millions just to 'advertise' their lies? (Do some reading - us elections cost billions and are huge business in the land of "free(to be)dumb" and the once-mighty dollar.)

    Game over.

    Mafiaa members and their supporters and the politicians that they own have had their chances for 20 years. They are incorrigible and must be disposed of.

    It is time to put this all to and end, period.

    Boycott all mafiaa members and all of their supporters and the politicians that they own. Promote the boycott at every twist and turn to anyone who will listen.

    Boycotting is perfectly legal, moral and ethical.

    The only way to stop evil as a movement is to starve it to death.

    Without money, the sub-humans promoting this evil would dwindle and die.

    And MODERN life would prosper.

     

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  14.  
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    Baldaur Regis (profile), Apr 20th, 2012 @ 8:07am

    Re:

    From the article you cited:
    The court case began in 2010 and came after talks between YouTube and Gema about royalties broke down. In 2009, the stalemate meant that videos from German recording firms were briefly blocked on the site.

    From other stories, GEMA is a very aggressive royalty collection agency. The question arises: who is more motivated to push back - YouTube, who can only lose money in these endless lawsuits, or the general population, who loses cultural icons from takedowns?

    Perhaps it's time for YouTube to block all submissions from Germany again and post links to GEMA and its subscribers. The internet is waking up; yell loud enough and our voices can be heard on the 30th floors.

     

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    Anonymous Coward, Apr 20th, 2012 @ 8:07am

    Re: Re:

    The laws don't need to change, I think.

    All they have to do is to determine who is distributing infringing files and punish them. The law already states that copyright infringement is illegal, and the mechanisms to deal with it already exist.

    Is it hard work? Hell yes! But most jobs require hard work, so hard work is not an excuse for trampling the law.

     

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  16.  
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    Anonymous Coward, Apr 20th, 2012 @ 8:08am

    Can we drive a

    I would like to ask a favor from no on. I hopes we can come to consensus on this. Instead of calling them "Hollywood Lawyers" can we Refer to them as "WeHo Lawyers" or "West Hollywood Lawyers" and the type of lawyering that they practice needs at hip name too let's refer to it as "Hide The Legislation".

    Basically, the type of law practice seems to be separated from reality, creates a good amount of units of "billable hours". Because suing an entire generation means that they like building an entire industry, in their little area, based on playing with other people's junk, which few people like, which is typical of the area known as West Hollywood.

     

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  17.  
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    Anonymous Coward, Apr 20th, 2012 @ 8:08am

    Re: Re:

    Actually, 'tard, it DOES NOT fail to explain how to deal with this sort of situation in a way that is meaningful for everyone.

    It pretty much is saying the ISPs CANNOT act as copyright cops based on ALLEGATIONS (of which there is nothing in the way of verifiable, much less reliable, proof/evidence of wrongdoing).

    Now, what that means, kid, is that the copyright holders need to up their game and their evidence gathering. I.e. Instead of using funds as stupidly as they do to tell others what they want them to do to protect them, use those funds to come up with foolproof evidence gathering techniques. Which will be proof/evidence rather than "we say this person is doing bad so just believe us".

    My guess is you're still an idiot. And Aussie laws will NOT be changed to address "this problem" but will be changed to say "you can't blame others and force them to do YOUR work for you". Which is what Hollywood is trying to do.

     

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  18.  
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    PaulT (profile), Apr 20th, 2012 @ 8:09am

    Re: Re:

    "Funny, I was just about to post this. I love when Mike gets all one sided and only posts up the "sunshine and happiness" stories."

    Personally, I love the way you attack him for taking more than 5 seconds to post a story on his opinion blog on the thing YOU want to talk about. God forbid you should use the resources available to notify him or wait a few hours for him to write his post.

    Besides, why could it be taking longer for him to post on a story from Germany than one in Australia? Could it be timezones or the fact that his posts take longer to write than your kneejerk attacks? No, it's a conspiracy!!!

    "The Australian court ruling is lacking, because it fails to explain how to deal with this sort of situation in a way that is meaningful for everyone."

    It's not the court's job to tell you how to conduct business. It's the court's job to assess the legality and liability of the claims put toward it. Your "side" lost and were told their claims were not correct and that the defendant should be compensated. That's all they need to do.

    People are telling you how to proceed, repeatedly, you just have to listen to them. It's not the court's remit to force you to do so, sadly, despite the fact you refuse to do so.

    "My guess is Aussie laws will be changed to address this problem."

    My guess is you'll still be whining about the same things in 10 years when said laws utterly fail to change anything - or, more likely, make things much worse.

     

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  19.  
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    DannyB (profile), Apr 20th, 2012 @ 8:10am

    $9 Million (plus their own legal costs) down the drain

    That's why the MPAA needs more money from evil pirates like Netflix.

    Proof:
    1. Netflix is on the internet
    2. Internet == Piracy
    3. Netflix == pirates

     

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  20.  
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    Anonymous Coward, Apr 20th, 2012 @ 8:13am

    Re: Re: Re:

    Hollywood just needs to change Australian laws to say that an allegation is good enough to kick someone off of all the Internets. Because preventing piracy is more important than freedom.

     

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  21.  
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    Chuck Norris' Enemy (deceased) (profile), Apr 20th, 2012 @ 8:14am

    Re: Re:

    The Australian court ruling is lacking, because it fails to explain how to deal with this sort of situation in a way that is meaningful for everyone. Just legally throwing up your arms and saying there is nothing to do is not acceptable.

    What ideas have the content industry come up with for stopping piracy? Make the ISP's figure it out!? ISP's are not cops or judges...funny, neither is the content industry? Therefore, their accusations of infringement cannot be taken to have any legal standing and iiNet treated them properly. Great, common sense ruling! Sorry for your butthurt.

     

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  22.  
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    Anonymous Coward, Apr 20th, 2012 @ 8:15am

    Can we get a consensus on this one?

    I would like to ask a favor from no on. I hopes we can come to consensus on this. Instead of calling them "Hollywood Lawyers" can we Refer to them as "WeHo Lawyers" or "West Hollywood Lawyers" and the type of lawyering that they practice needs at hip name too let's refer to it as "Hide The Legislation".

    Basically, the type of law practice seems to be separated from reality, creates a good amount of units of "billable hours". Because suing an entire generation means that they like building an entire industry, in their little area, based on playing with other people's junk, and not adopting technology.

    Also, there's very little planning or consensus driven with constituents across the country that happens in WeHo beyond that which includes messing with other people's music, movies, and TV shows.

    Just because your in West Hollywood, doesn't mean you or your company is correct, but it just means that there's a stong possibility that your gay.

    If your a lawyer who is gay, head to West Hollywood where you can write legislation and dumb laws like this.

     

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  23.  
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    TtfnJohn (profile), Apr 20th, 2012 @ 8:21am

    From a quick read of the stories it appears that this is a very good ruling from Australia's version of a federal Supreme Court.
    The judges ruling is unanimous and, better, there is no minority opinion from any of the justices. Even better is the costs award which judges often use to express their opinion of the validity of the lawsuit to start with and whether or not they consider the time and costs to have been "wasted".
    In my mind even better is that the judges acknowledge that bittorrent is a protocol that is an inherent part of the Internet not a peer-to-peer network and not inherently blockable by an ISP as it's built in. AND the futility of it all by pointing out the futility of it all by the alleged infringer switching ISPs. (Bittorrent is described as a swarm by it's developers which more accurately describes how it functions.)
    "It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks...," AFACT managing director Neil Gane said.

    As others have pointed out no copyright act is capable of "protecting content" once it hits the Web or Net. Once it's there it's there.
    iiNet CEO Michael Malone welcomed the ruling and said Hollywood should now focus on increasing the availability of lawful content in a timely and affordable manner. "We have consistently said we are eager to work with the studios to make their very desirable material legitimately available to a waiting customer base - and that offer remains the same today," he said.

    iiNet has the right idea here though it's doubtful the *AA's will get that now or, perhaps, ever. They haven't so far.

     

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    Anonymous Coward, Apr 20th, 2012 @ 8:31am

    Re: Re:

    There is something to do. You just don't want to do it because justice is hard.

     

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    Anonymous Coward, Apr 20th, 2012 @ 8:32am

    Re: Can we get a consensus on this one?

    So can we start the countdown to your wide stance?

     

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    crade (profile), Apr 20th, 2012 @ 8:34am

    That darn australian law isn't even capable of pinning copyright infringment on parties who aren't infringing! How are we supposed to do survive! oh boo hoo

     

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    TtfnJohn (profile), Apr 20th, 2012 @ 8:35am

    Re: Can we get a consensus on this one?

    Leaving sexual orientation out of this for a moment I'd agree that lawyers practicing for and in a single industry do get myopic and, therefore, lose touch with the realities of the world. Most politicians are lawyer which might go some way to explaining the *AA's supporters in Parliaments and Congresses around the world suddenly share the same myopia as WeHo lawyers, gay, straight, bi, trans or something else.
    Having lived in Vancouver's West End for a number of years I do know a few gay lawyers who find the whole IP maximalist thing ridiculous. I'm straight, incidentally.

     

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  28.  
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    TtfnJohn (profile), Apr 20th, 2012 @ 8:35am

    Re: Can we get a consensus on this one?

    Leaving sexual orientation out of this for a moment I'd agree that lawyers practicing for and in a single industry do get myopic and, therefore, lose touch with the realities of the world. Most politicians are lawyer which might go some way to explaining the *AA's supporters in Parliaments and Congresses around the world suddenly share the same myopia as WeHo lawyers, gay, straight, bi, trans or something else.
    Having lived in Vancouver's West End for a number of years I do know a few gay lawyers who find the whole IP maximalist thing ridiculous. I'm straight, incidentally.

     

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    TtfnJohn (profile), Apr 20th, 2012 @ 8:36am

    Re: Re: Can we get a consensus on this one?

    oops! Accidental double post!! Sorry!

     

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  30.  
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    crade (profile), Apr 20th, 2012 @ 8:41am

    Re: Boycott!! At the risk of repeating myself:

    been boycotting for quite a while, but I'm not sure it's actually the answer. They make laws. There are already plenty of laws that get them money without anyone actually having to choose to buy their products. If there aren't enough of those to get by, they will just make some more.

     

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  31. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Apr 20th, 2012 @ 8:42am

    Re: Re: Re:

    "Now, what that means, kid, is that the copyright holders need to up their game and their evidence gathering."

    Yes, and run into the same wall with the ISP - we can't give you customer information, and we will fight you in court every time you try to obtain it.

    "My guess is you're still an idiot. "

    My guess is that you are a clueless freetard, running two copies of BT at the same time and seeding your favorite gay twink porn as fast as you can to get social standing points in your forum of choice, all the while expecting to get paid for sending people to your file locker site of choice.

    Tard.

     

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  32.  
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    Call me Al, Apr 20th, 2012 @ 8:44am

    Re: Re: Score one for the good guys

    While the "Good Guys" may have scored more than once recently it appears that their goals have been disallowed due to the convoluted rules of the game. In certain circumstances the particular game is simply replayed until the correct result occurs.

     

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  33.  
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    crade (profile), Apr 20th, 2012 @ 8:44am

    Re: Re:

    what difference does it make? It's not the courts job to tell them "how to deal with it". If theres a string of murders and the court finds the suspect not guilty, do you say it's a bad ruling because it doesn't explain how to deal with the murders? How about you go find the people actually breaking the law and leave the innocents alone? How about that?

     

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  34.  
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    G Thompson (profile), Apr 20th, 2012 @ 8:53am

    Re: Re:

    Explain how the High Court of Australia NOT explaining what to do is part of the courts responsibility? Explain why the courts ruling in your view is NOT meaningful.. under Australian law?

    Really I'd love to know since I have read the ruling, been following the case very closely for last 4 and a bit years and even know most of the actors on both sides.

    Though interestingly your "throwing up your arms and saying there is nothing to do" comment is exactly why Roadshow (AFACT) Lost all the court cases all the way through since they were stating "we can't do anything about our business so we want others to do it for us.. *throw up arms and dummy spit*"

     

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  35.  
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    Anonymous Coward, Apr 20th, 2012 @ 8:53am

    Re: Re: Re: Re:

    >Yes, and run into the same wall with the ISP - we can't give you customer information, and we will fight you in court every time you try to obtain it.

    If the evidence you had actually held more water then maybe you wouldn't encounter this problem.

     

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  36.  
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    G Thompson (profile), Apr 20th, 2012 @ 9:02am

    Re: Re: Re: Re:

    "Yes, and run into the same wall with the ISP - we can't give you customer information, and we will fight you in court every time you try to obtain it."

    Actually that is NOT correct. NO Australian court stated that, they just stated that the so called evidence that the copyright holders collected needs to follow full procedures under Australian law. Which requires that the copyright holder fully lay out whow where and what information they have obtained and why it is a foundation for the basis of their allegation. How is the evidence obtained, how relevant is it, etc. Oh and give it to the PROPER authorities. ie: The Australian police if they are trying to convey something that falls under criminal sanctions. Otherwise go to a court, present your evidence and do what anyone else has to do. No fear nor favours in this place.

    My guess is that you have no clue about laws and democratic procedures in any country let alone your own (USA I will posit) and are currently butthurt that some court (the Highest court) had the audacity to give you and your ilk a dose of good old reality and Aussie Common Sense. Though not as butthurt as AFACT is now.. $12mill at last estimates for legals.. oops!

    Oh and for your education since this decision was given by a Court that is granted the same status as the US Supreme court (SCOTUS) this decision carries a huge weight for other countries around the world, especially those within the commonwealth (ie: India, Canada, New Zealand) get used to more losses in the courts.

     

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  37.  
    identicon
    Joseph, Apr 20th, 2012 @ 9:04am

    Anglosaxon copyright

    This is only because Australia is part of the anglosaxon copyright tradition rather than the continental version that has slowly been taking over global views of copyright. It wont be long before we lose these battles even in countries that follow this tradition thanks to the WIPO and Berne convention.

     

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

  38.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 9:04am

    Re: Re: Re: Can we get a consensus on this one?

    One more and its fed to the trolls for you.. muwahahaha ;)

     

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

  39.  
    icon
    Dark Helmet (profile), Apr 20th, 2012 @ 9:06am

    Re: Re: Re: Re: Re:

    Oh, don't bother. This is from the same jackass who said the court's ruling was lacking because it didn't tell the industry half a world away how to solve all its problems.

    Personally, I'm having trouble coming up with an opinion more idiotic than that....

     

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  40.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 9:08am

    Re: Re: Re: Re: Re:

    "Otherwise go to a court, present your evidence and do what anyone else has to do. No fear nor favours in this place."

    The issue is that, at that point, they have to file as a doe, because they have no idea who the person is, and the ISPs turn around and say "we don't know either" or "we don't log it" or "we aren't going to tell you until you get a conviction" or other claptrap to basically block the attempt to get anything done.

    The effect is to add enormous costs to every lawsuit filed, requiring an incredible amount of work just to pry the information out of the ISP to even allow the original suit to be filed, and then spend another shit pile of money to prove the user guilty, only to discover that he is an outback sheep f---cker with $3 and a rusty ute to his name.

    It's basically telling copyright holders to jump in a lake, it will cost too much for you to defend your rights.

     

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  41.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 9:12am

    For those who would like to read the Courts press statement the pdf is available at:
    http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf


    The full judgement of Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16 can be found here:
    can be found http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html

    The only thing that I didn't like about the judgement is that "safe harbours' have still not been fully addressed within Australia since the court found it was unnecessary to address it [at 148].

    Though Roadshow (really AFACT) have to fully pay costs.. Oops! [$12mill is one estimate]

     

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  42.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 9:15am

    Re: Re: Re: Re:

    "Yes, and run into the same wall with the ISP - we can't give you customer information, and we will fight you in court every time you try to obtain it."

    No, they only did it this time because the copyright holders or someone acting at the behest of Hollywood was trying to make the ISP terminate accounts based on allegations. Something which the ISP was not legally required to do. And which the judge, wisely, ruled stating basically the same thing. Allegations DO NOT equal proof/evidence. As such the ISP cannot do anything based on the allegations, else they run the risk of being sued themselves.

    Now, if there was actual proof/evidence of wrongdoing that was linked to a specific person, as opposed to a household in general, maybe the ISPs would be more forthcoming and willing to forward any "allegations" (of course they wouldn't have to terminate accounts based on allegations, merely pass along the message).

    "My guess is that you are a clueless freetard, running two copies of BT at the same time and seeding your favorite gay twink porn as fast as you can to get social standing points in your forum of choice, all the while expecting to get paid for sending people to your file locker site of choice.

    Tard."

    No, I'm actually a rather informed consumer/customer (no clueless freetard here, although one can't say the same for you... as far as clueless goes at least). And I am indeed running a copy of utorrent, but it's because I'm downloading/seeding a few Cyanogenmod nightlies (you know, ROMs for various Android phones compiled and customized based on source code freely released by Google), which is perfectly legal. In fact, I only use utorrent to download/seed freely distributed non-copyright infringing files. Because torrent technology is perfectly legal, as you probably don't realize/know due to your own biased beliefs. Also, I'm not a forum person, unless you count the xda-developer forums of which I'm a member and contributor (I help the noobs because I was one too at one point). Nor do I use file lockers, unless you count Mediafire where I store various documents I regularly need access to from various locations (work related documents) or Dropbox where I store copies of ROMs and my app/data backups for easy access to on the go whenever I decide to flash a new one randomly or have problems and I'm not in front of my personal laptop to fix/utilize. Also, I'm straight, so if I did download/seed porn it would be of the straight variety, but I have a girlfriend. So I'm kind of not in need of porn, she's more than enough to meet my needs.

    I bet we can't say the same about you. I bet you're the same AC who's got a major crush on Marcus and always brings him up in every article. Me think thou hast repressed homosexual tendencies/urges. It's okay, nothing wrong with that. We won't judge you.

    Also, please don't try insulting me again. You suck at it. You're out of your league and I'm not even going to try to return the insults (too much), it'd be like picking on a 5 year old. I mean I could do it, but it's just not fair.

     

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  43.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 9:18am

    Re: Anglosaxon copyright

    WIPO and Berne have nothing to do with any of this. In fact the USA don't take any notice of WIPO anymore, and are beginning to breach Berne as well.

    In fact the 'Continental' version of copyright as you name it is actually becoming a thorn in the side of Statute of Anne based countries (common law countries actually).

    You might want to browse through the 1709 Blog [ http://the1709blog.blogspot.com ] a bit dry though always interesting and unbiased, before you comment about WIPO and Berne etc.

     

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

  44.  
    icon
    John Fenderson (profile), Apr 20th, 2012 @ 9:18am

    Re: Re:

    The Australian court ruling is lacking, because it fails to explain how to deal with this sort of situation in a way that is meaningful for everyone.


    Why is it the court's job to do that? Maybe things work differently in Australia, but here in the US it's not. Sure, sometimes the courts will offer such guidance, but it's certainly not a requirement.

     

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  45.  
    icon
    surfer (profile), Apr 20th, 2012 @ 9:20am

    Re: Re: Re: Re: Re: Re:

    suck it up cupcake

     

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  46.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 9:26am

    Re: Re: Re: Re:

    Also, might I add, it's highly amusing how easily upset and how much offense you take at being called "kid" and "idiot". Yet you and your kind seem to have no qualms with calling people pirates and thieves and freetards, telling them they suck or are nobodyies (as artists, writers, etc), discussing and referring to people's weight or weight problems and so on and so forth. In fact, you do all of that regularly.

    You can dish it out, but you can't take it.

     

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

  47.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 9:27am

    Re: Re: Re: Re: Re: Re:

    The issue here is that copyright holders need proof of infringement, which they don't have. If they did, I'm betting that the judge would have no problems in telling the ISP to identify the does.

     

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

  48.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 9:31am

    Re: Re: Re: Re: Re: Re:

    The issue is that, at that point, they have to file as a doe
    Actually they don't. They can go to the police, state this is all their evidence sign, statutory documents under Oath that criminal acts have been committed. Then the police take over the investigation and decide whether to go ahead. The problem with all the so called Evidence that AFACT had was that it was third party hearsay that had no relevance and no authenticity behind it.

    Also remember we do not have Statutory damages in Australia so going civil is pointless unless you can PROVE damages to the full satisfaction of a court (not jury) after all other elements are proven of course.

    Adding enormous costs to every lawsuit is a red herring since Business liability insurance would cover it... If it doesn't, well maybe your in the wrong business and need to do something different.

    The problem isn't the costs, its the time.. And the **AA organisations that do not like Australian laws that are more equalised than most places especially when it comes to consumers, trade, privacy and tort reform.

    If you think it's telling copyright holders to jump in a lake, you are not looking at the holistic situation nor the ethics involved from an unbiased viewpoint, instead you are only concerned about one side that can do no wrong.

    I really hope you are not in the legal industry nor in business because unless you can look at all sides you will never succeed in any strategic plans you will make in life. The balance for law needs to be placed on both sides. Luckily in civil laws within Australia the onus of proof is fully on the plaintiff to prove everything including damages.

     

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

  49.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 9:34am

    Re: Re: Re:

    It's never the courts job to show how to deal with it, the HCA's only job is to interpret the law as it stands under current statute, and in the case of the HCA The Australian Constitution as well. Same as SCOTUS

    Even guidance when given, rarely now in Higher Courts is only obiter.

     

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  50.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 9:40am

    Re: Re: Re: Re: Re: Re: Re:

    Yep I have given lots of exigent evidence that has to be reliable, relevant, and authentic to courts here (AUS) before Judges (Magistrates normally) will even consider orders for identifying unknowns

     

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

  51.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 9:42am

    Re: Re: Re: Re: Re: Re:

    Oh I've read some idiotic opinions in my time, some even from US Judges ;)

    Seems any idiot can have an opinion.. and most do.

     

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

  52.  
    icon
    Dark Helmet (profile), Apr 20th, 2012 @ 9:48am

    Re: Re: Re: Re: Re: Re: Re:

    So it sounds like copyright holders lack the proof of infringement they need and cannot obtain such proof, whether it exists or not, within the boundries of current law.

    In other words, they have no case. So what the fuck are we talking about?

     

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

  53.  
    icon
    tqk (profile), Apr 20th, 2012 @ 10:54am

    Re: Re: Re: Re:

    My guess is that you are a clueless freetard, running two copies of BT at the same time and seeding your favorite gay twink porn as fast as you can to get social standing points in your forum of choice ...

    Cogent argument that. :-P News for you: some of us advocate boycotting all that crap and refusing to bother consuming anything from IP maximalists. We want them to go out of business, not give us free stuff.

     

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

  54.  
    identicon
    Digitari, Apr 20th, 2012 @ 10:56am

    Re: Re: Re: Re: Re: Re:

    maybe, just maybe if you spent more money creating tools to ascertain who the real infringers are, rather than say contributing to politicians that can be bought, you might get farther (but yeah that's still work and OMG!! you would actually have to CREATE something,) welcome to the REAL world, it's called HARD WORK

     

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

  55.  
    icon
    tqk (profile), Apr 20th, 2012 @ 11:06am

    Re: Can we drive a

    Do you realize that everything you've written here tends to "out you" as a closet homosexual? "Methinks the lady doth protest too much ... and all that. There's nothing wrong with it, I guess, but you might consider seeing a psychologist to help you deal with your denial problem. Just a suggestion, and have a lovely day. :-)

     

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

  56.  
    identicon
    annnd, Apr 20th, 2012 @ 11:32am

    Re: Re: Re: Re:

    i must say if AC of april 20th 2012@8:42am is representive of the fine people he defends then its no you little currupt a####cks have this happen to you. the dmv run by adolf hitler whould have a better rep then you bastards whould.

     

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

  57.  
    identicon
    oh rly?, Apr 20th, 2012 @ 11:39am

    Re: Re: Re: Re: Re: Re:

    so you can spend a million dollers to hire a lawyer to sue the mother of a dying girl with cancer but you cant get off your ass for five minutes to even find evidence that the #### you say happened?

    you people are ####### pathetic. do you want to inject aids into people who you think infringe too?

    im logging off for a while. this is making me pissed.

     

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

  58.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 11:53am

    Re: Re: Re: Re: Re: Re: Re:

    Wonderful - but what if it is civil, and not criminal? The police will point at the door and tell you to use it. It's your problem, not ours.

    Don't confuse criminal and civil.

     

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  59.  
    icon
    gorehound (profile), Apr 20th, 2012 @ 12:18pm

    Re: Boycott!! At the risk of repeating myself:

    I totally support you in Boycotting the MAFIAA !
    MAFIAA Will never get into my Wallet as I have "CENSORED" them from my Money.
    I wait and buy stuff Used.I never Buy New MAFIAA or go to a Theater or give them any way to get income from me.
    I will buy INDIE NON-MAFIAA Stuff with no probs at all.

     

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

  60.  
    icon
    Baldaur Regis (profile), Apr 20th, 2012 @ 12:37pm

    Re: Re: Re:

    'Hard work', defined as calling your lawyers and yelling at them to DO SOMETHING about those dammed pirates, is not really working out for the content distributors. That's why they're trying to push the cost and effort onto taxpayers. Hollywood is not only greedy, they're LAZY.

     

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

  61.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 12:44pm

    Re: Re: Re: Score one for the good guys

    "correct" result

    FTFY

     

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  62.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 12:51pm

    Re: Re:

    First of all, every time Mike or anyone else here posts an article on a ruling that goes the other way and presents his opinion that it's a bad ruling he gets jumped on by trolls and shills just like you for questioning the judge's ruling.

    Second, you've misunderstood the ruling. It doesn't say there is nothing to do. There's plenty that can be done, attacking the ISP just isn't one of the things and rightly so.

     

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

  63.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 12:57pm

    Re: Re: Re: Re:

    "But due process is so damn hard"

    Suck it up.

     

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

  64.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 1:04pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    If it's civil then you have to foot the bill yourself just like everyone else. It's obscene that you think it's reasonable to change the law so that others have to pay for your bills.

     

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

  65.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 1:06pm

    Re: Re: Can we drive a

    I'm so confused right now.

     

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

  66.  
    identicon
    DC, Apr 20th, 2012 @ 1:55pm

    Re: General knowledge "rule"

    If they have general knowledge that they are cheating their artists...

     

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

  67.  
    identicon
    DC, Apr 20th, 2012 @ 2:01pm

    Re: Re: Re: Re:

    well argued. /sarc

     

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

  68.  
    identicon
    DC, Apr 20th, 2012 @ 2:04pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    And by the by, pick a consistent alias.

     

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

  69.  
    icon
    John Fenderson (profile), Apr 20th, 2012 @ 2:31pm

    Re: Re: Re: Can we drive a

    That particular AC made a series of comments complaining about gay lawyers in West Hollywood, for no apparent reason. He did indeed come off sounding like a self-hating, closeted gay man.

     

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

  70.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 6:00pm

    Re: Re: Re: Re: Re: Re:

    The funny thing is that your ilk love to say that regardless of whether copyright as a law makes sense you're all too happy to say that the laws, as they are right now, must be followed and not challenged. Now we have an ISP who is following what the law says, and you're blaming them?

    What an entitled prick you are. Did you really think that everyone has the money to buy laws that favour your position?

     

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

  71.  
    identicon
    Anonymous Coward, Apr 20th, 2012 @ 6:20pm

    Re: Re: Re: Re:

    >My guess is that you are a clueless freetard, running two copies of BT at the same time and seeding your favorite gay twink porn as fast as you can to get social standing points in your forum of choice

    What is it with you maximist trolls and homosexuality? Marcus makes a post - he's having sexual relations with Mike! Court makes a decision you don't agree with - if you agree with it you must be sharing gay porn!

    I find that the new anonymous poster alleging homosexual relations amongst West Hollywood lawyers may be onto something here. Gay or not, there's definitely some obsession with the topic here.

     

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

  72.  
    icon
    G Thompson (profile), Apr 20th, 2012 @ 10:58pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I wasn't confusing criminal nor civil, nor even administrative or admiralty, (read my profile) AFACT and it's members were doing that all on their own in the beginning. That's what led to the original court case since AFACT alleged criminal activity on their notices, iiNet sent all their notices directly to the police who immediately investigated, found them lacking so sent them to that round filing cabinet on every floor.

    Civil has no statutory damages in Australia. Civil requires FULL evidence of damages (and not just on balance) once the other elements have been proven based on balance of probability. Though rules of evidence still fully apply within Civil cases in Australia the same way they so in Criminal cases.

    Onus of Proof in these instances are fully on the plaintiff, as they are on prosecution.

    What part of this don't you understand?

    Basically AFACT were trying to skirt around the court system to make iiNet responsible for doing everything instead of going to the court and showing just cause why an Anton Piller order (look them up they are not USA) was required to search, seize and identify.

    The court has soundly stated they are the only ones that can authorise this.

     

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

  73.  
    icon
    Chargone (profile), Apr 20th, 2012 @ 11:23pm

    Re: Re: Re: Re:

    sure, it's worked elsewhere already...

    if only partially in some cases.

    even if it did require blatant opportunism and abuse of the system using disaster relief as a mask...

    grrr...

     

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

  74.  
    identicon
    Anonymous Coward, Apr 22nd, 2012 @ 12:43pm

    Party time!

     

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

  75.  
    identicon
    The Moondoggie, Apr 22nd, 2012 @ 6:02pm

    Score

    I'll be a bit childish here since I love good news:

    Good guys(aka BT users and ISP companies that advocates Internet Freedom from copyright): 1
    IP Maximalist Troll retards who deserve to die: 0

     

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

  76.  
    icon
    Niall (profile), Apr 23rd, 2012 @ 5:05am

    Re: Re: Re: Re:

    I guess we'll bow to your expertise in seeding your favourite gay twink porn? And leave it to you...

     

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

  77.  
    icon
    Niall (profile), Apr 23rd, 2012 @ 5:07am

    Re: Can we drive a

    They could go and get some quality Columbian 'junk'... I hear it's recommended by government agencies!

     

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

  78.  
    icon
    Niall (profile), Apr 23rd, 2012 @ 5:09am

    Re: Can we get a consensus on this one?

    And you got your extensive experience of West Hollywood lawyers how?

    I'm fairly certain I'd rather get advice from, and even talk to, a 'gay' lawyer rather than yourself!

     

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

  79.  
    identicon
    Anonymous., May 16th, 2012 @ 9:03am

    FUCK THE MPAA.

     

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


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