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).

Filed Under: australia, copyright, infringement, isps, liability
Companies: afact, iinet

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  1. identicon
    Anonymous Coward, 21 Aug 2009 @ 6:15am

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

    How do I answer this? You make it very difficult because you are not really understanding the issue.

    "If the RIAA doesn't have probable cause of course it will be difficult to convince a court of anything."

    The problem is that the courts are often not willing to work with or are not understanding of the types of proof that can be given. Imagine the need each time to get in front of a judge and spend 3 - 10 days explaining IP addresses, torrent technology, what data you have, etc, before the courts will even consider your request... and then they say it is a civil matter, you need to sue the ISP and spend months there before they might be obliged to give up the information.

    "First you must prove there is something to stop. Hence a court order."

    You are wrong here, you don't have to PROVE anything, just show that there is some cause. As I mentioned above, the problem is the technical nature of the proof, which is often beyond the reach of a judge. In the US, they might as an example appoint a special master to review the data and get back to the judge in 90 or 120 days. Not exactly friendly, is it?

    ISPs should not be in a position to legal protect their clients. If they are served and want to invoke the local version of "230 protections", then they should be obliged to point in the right direction. Right now they have it both ways, they can say "we are just a service provider" and "we can't say anything ever". So the uiser involved could be an ISP employee, and they can still do the same. It seems like standard truly leaning to one side only, the pirates.

    "I agree, intellectual property lasts way too long and the laws are remarkably one sided in favor of rich and powerful corporations at public expense."

    HAHAHAHAHAHAHAHAHAHAHAHAHAHAHA. It isn't like you read anything I posted.

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