If You Only Share A Tiny Bit Of A File Via BitTorrent, Is It Still Copyright Infringement?

from the depends-on-who-you-talk-to dept

We've mentioned the ongoing lawsuit against ISP iiNet in Australia a few times. Basically, the movie studios are pissed off at iiNet because it didn't do much in response to letters that were sent concerning IP addresses of those that the studios believed were sharing unauthorized works. As iiNet noted, however, it didn't see why it was involved in any of this:

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 trial has been going on recently, and while I haven't been following the details that closely (figure it's worth waiting for the verdict), there was one interesting tidbit. As the company had suggested earlier, it's arguing that sharing a file via BitTorrent is arguably not copyright infringement at all. That's because of the way BitTorrent works, in breaking up any file into tiny components and sharing the individual pieces. A key element of copyright law is looking at how much of the content is shared. Down in Australia, they have a "fair dealing" exception to copyright law that appears to allow for copying small portions of a work, and some precedent of short video clips not being considered infringing.

While I would be quite surprised if this argument worked (even if it may be technically correct, it's so rare that judges pay attention to the technical aspects when it comes to copyright), I'm a bit surprised we haven't seen this argued elsewhere as well. Of course, if it does actually work, it will only turn the focus back towards the question of whether or not "making available" violates the distribution right of copyright, since that would cover what BitTorrent users were doing, if they offered up any unauthorized content (even if they actually shared only a tiny fraction).

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iiNet Says Complying With Anti-Piracy Complaints Would Violate Telecom Laws

from the privacy-anyone? dept

We've been following the lawsuit down in Australia, where AFACT, the local entertainment industry "anti-piracy" group, has sued ISP iiNet, complaining that the ISP refused to do anything when it would send over infringement notices. From the beginning, iiNet's response has been clear:

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'.

AFACT continues to insist that iiNet should be responsible for becoming copyright cops themselves, and had won an early battle, forcing iiNet to hand over "sample" records of users. However, Big Al points us to the latest news, where iiNet is claiming that not complying with AFACT's usual demands (it is handing over the sample data after working out the details) isn't just an issue of iiNet not wanting to be AFACT's enforcer, but that it violates Australia's telecom act, and could be a serious breach of privacy laws:

"Under the Act, it is illegal for iiNet to use customers' personal information in the manner demanded by AFACT without a court order or warrant. Breaches of the privacy provisions of the Act can attract a two-year gaol sentence."

Separately, iiNet noted:

"To examine customer communications on the basis of a third party's allegations would be a criminal act for us to engage in."

"Our starting position on this would be there is good public policy reasons for why Australia Post should not be opening your letters. And good reasons for why carriers should not be listening to your phone calls or looking at what you download. Our view is that would constitute a criminal offence."

It should come as no surprise that AFACT isn't buying this, calling it a "very novel" argument and one it hadn't seen before, and claiming that IP address information is not the sort of information that's meant to be included under the telco act, since it's not really "confidential." This case just gets more and more fun to watch (though, if I had to guess, iiNet's arguments probably won't prevail).

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Court Orders iiNet To Hand Over Sample Records Of Customers

from the privacy? dept

iiNet is the Australian ISP that has been standing up for its customers' rights against the entertainment industry which is suing the ISP for not magically stopping copyright infringement. iiNet's argument, from the very beginning, has been that if the entertainment industry believes that iiNet customers are breaking the law, then they should sue those customers. It shouldn't be iiNet's responsibility to act as the industry's police:

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'.

iiNet has also raised questions about whether or not a user making use of BitTorrent is technically violating copyright, especially since they may only be sharing a tiny fragment of a file based on the way BitTorrent works.

Either way, a court has now ordered iiNet to hand over a small sampling of customer data requested by the anti-piracy group AFACT, which AFACT claims will show infringing activities on the part of iiNet subscribers. Of course, it would be no surprise at all that a group of folks hand picked by the industry can be shown to be infringing. The real legal question is whether or not (a) there's enough evidence to prove who was actually infringing and (b) more importantly, why this is iiNet's responsibility.

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Movie Studios Continue To Demand Australian ISP Admit To Supporting Piracy

from the but,-uh,-it-didn't... dept

You may recall last November that a bunch of movie studios got together and sued Australian ISP iiNet, for not being able to wave a magic wand and make all unauthorized file sharing among its users disappear. The ISP, who has taken a very pro-consumer stance, responded by noting that if there's any "theft" involved, it should be a matter for the police to investigate, not an ISP to take action based on allegations alone:

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'.

In March, the company further explained its defense, noting that direct file sharing between two individuals doesn't appear to violate Australian copyright laws, since there's no "public" distribution of the material.

The latest, as pointed out by Michael Scott, is that the studios are basically stomping their feet and demanding that iiNet admit that it broke copyright law.

To be honest, it appears the two sides are talking past one another. The studios insist that iiNet is breaking the law by not taking action against file sharers, while iiNet is pointing out that's not the issue. It's saying it would be perfectly happy to take action against those convicted in a court of violating the law. But it can't just take the studio's word for it, and so it sees no reason to act until a court has convicted someone.

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Austalian ISP Stands Up For Users In Court -- Claims They're Not Violating Copyright

from the this-could-get-interesting... dept

Late last year, a bunch of movie studios sued Australian ISP iiNet (which already has a reputation for standing up for its users) for not waving a magic wand and stopping any unauthorized file sharing that occurred among its customers. iiNet responded by pointing out the obvious: if the studios feel they've been wronged, they should take it up with the police, not iiNet. In fact, they said they pass such complaints directly to the police:

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 case is moving forward now, and iiNet has kicked things off by suggesting that users sharing files on a one-to-one basis via BitTorrent don't seem to be violating Australian copyright law. Specifically, iiNet seems to be saying that using BitTorrent doesn't violate copyright because a one-to-one trade isn't distributing the content publicly (a version of the "making available" debate still going on in the US in some circles) and also pointing out that since BitTorrent breaks files up into so many small pieces, no individual user appears to be distributing enough to be considered copyright infringement.

While the argument does, in fact, make plenty of sense -- I wonder if it will actually fly in court. The entertainment industry has convinced so many people that any sort of unauthorized use of content is "piracy" that an emotional argument may prevail. In fact, the movie studios already seem to be going for the emotional argument expressing shock that iiNet can claim that its customers aren't violating copyright law.

The case will be an interesting one to follow -- though, you know if iiNet prevails, lobbyists will move quite quickly to push the Australian government to change copyright law to clarify the issue. Just watch: if it happens, there will be a rash of stories about how Australia "has to" do this to "comply with international treaties." It's how these things work.

To be honest, I'm surprised iiNet is taking such an extreme position. It seems like sticking with the "we're just the neutral service provider" response would have a higher likelihood of success.

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Details Emerge On Australian Lawsuit Against ISPs For Failing To Stop Piracy

from the that's-the-best-you-can-do dept

Last month, we wrote about the lawsuit filed by various movie studios, against Australian ISP iiNet for failing to wave a magic wand and wipe out piracy. Apparently, the reason the studios thought they had a slam dunk case was because they hired an "investigator" who signed up with iiNet's service, purposely shared movies, and then had the studios complain to see if iiNet would cut him off. Since it did not, the studios claim that iiNet knew about piracy and did nothing about it. Leaving aside the point that it wasn't actually copyright infringement in the case of the investigator, since he was authorized to distribute the content, and the takedown notice would likely be a false notification, iiNet's response (which we mentioned when the case first came out) seems to still be dead on:

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'.

So, iiNet did take appropriate action. It alerted the police that a company felt laws were being broken. That seems like it should be the extent of any ISP's engagement when sent such flimsy evidence.

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Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy

from the blame-someone-else dept

A few years ago, after realizing that blaming consumers wasn't a particularly effective strategy in covering up for the entertainment industry's own inability to adapt to a changing market, industry insiders chose a new strategy: blame ISPs. That sent them down a path of trying to force ISPs to do a variety of things, such as installing filters, policing their networks for copyright-infringing material and, of course, kicking users off their networks. In the mind of entertainment industry execs, a failure to do any of these things should be a crime. Note how the industry totally shifts responsibility here. Rather than admitting that they should change with the market, it's always someone else who needs to change to protect the entertainment industry's obsolete business model.

While the industry has been able to get some politicians and ISPs to agree (amazingly, often against their own best interests), it's now gone a step further. A bunch of the biggest movie studios (Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, and the Seven Network) have teamed up to sue Australia's largest ISP, iiNet, for failing to stop copyright infringement. iiNet, you may recall, is the same ISP that has been mocking the Australian government for requiring filters. So, naturally, it's response to this lawsuit is rather direct. While the studios complain that iiNet isn't doing anything, iiNet responds that this is not true at all. They pass each complaint on to the police, because if there's a crime, then the police should deal with it:

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'.

We are not traffic cops. We can't stand in the middle of it and stop the individual items that might be against the law. These guys are asking us to be judge, jury and executioner.

Even better, iiNet's CEO Michael Malone gets to the heart of the matter:

I think they genuinely believe that ISPs have a secret magic wand that we are hiding and if we bring it out we can make piracy disappear just by waving it. And it doesn't exist.

Indeed, but that might mean that the entertainment industry has to actually take responsibility for their own business model failings, and they can't do that. So they have to blame others.

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Australian ISP Agrees To Filter... Just To Show How Stupid It Is

from the that'll-show-'em dept

Australian politicians have been pushing to censor the internet for years, with its latest initiative being the most extreme and most ridiculous. Of course, even though each and every past effort by the Australian government has failed miserably, they always seem to think that this time it will be different. At least the largest Australian ISP thinks the government is out of its mind. The CEO of iiNet has agreed to sign up for the filters, but only to collect hard data in order to prove to the government "how stupid" the plan is:

"They're not listening to the experts, they're not listening to the industry, they're not listening to consumers, so perhaps some hard numbers will actually help. Every time a kid manages to get through this filter, we'll be publicising it and every time it blocks legitimate content, we'll be publicising it."

Good for them, though it seems unlikely to work. In the past when similarly ineffectual filters were demonstrated, Australian officials just interpreted it to mean they needed to pass stricter laws.

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