Morons to decide future of the internet in Australia
A battle is starting to play out in an Australian courtroom over whether or not ISP’s are ultimately responsible for what their customers download.
AFACT, backed by seemingly every movie studio under the sun has taken isp iiNet (no, they’re not owned by Kraft) to court claiming that iiNet profit from their users download pirated content.
Whilst both sides of the case seem to at the very least have a grasp on the technological platform they are fighting over, the one man who’s opinion will carry the most weight is seemingly has no idea about the technology behind the case.
Following a video presentation by AFACT’s barrister QC Bannon of the group’s investigator Nigel Carson downloading Warner Bros’ movie Batman Begins, Cowdroy asked if he could be shown what other ISPs were facilitating file sharing.
“Can you show me, Mr Bannon, how many other internet providers are providing the same sorts of information? What other ones right now are doing this?” asked Justice Cowdroy.
It’s been a while since I left Dodo because they started shaping p2p all the time but even then they still offered access to it. The fact of the matter is that any ISP in the country who 100% blocked p2p would go out of business pretty quickly.
Further to seemingly having no concept of how peer to peer sharing works, or an ISP’s involvement in delivering content to an end user, Justice Cowdroy apparently also can’t tell the difference between a video presentation and actually being online.
“I’d be interested to see this in real life,” Cowdroy said.
“This is actually a video of what he did at the time, so it’s not online now,” Bannon explained, adding that it may in the future give a live demonstration in court.
…No really, this is the guy who’s going to decide whether or not ISP’s are liable for what their customers download.
If the above made absolutely no sense to you at all, let me break it down for you with an analogy. What happened in court today is something like this:
‘Your honor, we are here today because iiNet is responsible for drivers speeding on the roads they’ve built. Drivers pay tolls which mean iiNet are profiting from the drivers speeding.’
‘I see. Go on.’
‘Here is some video footage of cars speeding on iiNet’s roads.’
‘Amazing. I would very much like to see if other road companies allow drivers to speed, can we take a drive on some other roads?’
‘…uh this is video footage of iiNet’s roads, we’re not actually driving right now your honor.’
‘wait what? You mean you can drive on these roads? How long has this been going on for?!?!?’
It might sound ridiculous and hard to believe, and that’s because it is. Meanwhile replace roads with the internet, tolls with monthly internet access costs, driving with downloading and speeding with downloading illegal content and this is exactly what happened on day one of the most important court case regarding the internet in Australia.
The future of our internet is being decided by morons who haven’t the slightest clue on how the internet works or the main principles behind how access to it is obtained.
Normally I wouldn’t care but given what’s at stake here. If iiNet are found guilty, and from the sounds of it AFACT aren’t going to have to try too hard or prove much to win, then ISP’s are going to be looking at covering themselves legally against their own customers.
And does anyone think it’ll stop at pirated movies? Music will soon follow and before you know it your ISP will be sending you a ‘cease and desist’ because you typed the word purple and Cadbury might object.
Instead of better enforcement of existing penalties or campaigning for stronger ones where illegal activity is concerned, AFACT instead are opting to force ISP’s into restricting how Australians use the internet.
What protocols you can use and what you can do with said protocols in my opinion goes way beyond the jurisdiction of copyright protection.
Furthermore once it’s gone and copyright holders have had a taste of controlling what people do on the internet does anyone think it’s going to be easy to reverse the decision?
Nevermind the fact that there’s nothing inherently illegal with peer to peer technology nor the fact that ISP’s simply cannot distinguish copyrighted data from non-copyrighted data.
As for AFACT’s argument that ISP’s make a profit directly related to illegal downloading,
AFACT’s barrister outline its claim that iiNet profits from customers that download copyrighted material and “sanctioned and approved” its customers’ file-sharing efforts.
As iiNet’s managing director Michael Malone points out:
When people download, that’s a cost to us. The more people download, the more it costs us,” he added. “The evidence will show over the next few weeks that that is incorrect. Heavy download users make less money for iiNet.”
Surely there’s at least one judge in Australia who knows what the freaking internet is.
October 7th, 2009 at 9:05 am Mike(Quote)
Surely this is the case for all cases in this country though. The judges rarely have a good understanding of anything at the start of the court, perhaps outside family court, and would hopefully have a better understanding by the end.
I think there are different ways to determine the quotes as well
For me, surely he is just asking why AFACT is picking on iinet? Which is a sensible question and is going to be a major stumbling block for AFACT.
Is this just not a request to see the actual downloading in real life. As in, how can AFACT not show that they have faked the download of a video from iinet? This would be awesome, assuming that iinet do not provide the access to the courthouse!
At the end of the day, the judge is never going to rule in favour of AFACT. This is the wrong court case for them to be fighting, but as part of the their master plan they need to lose this case so they can bitch and moan to the government about file sharing again. And if they do win by some amazing incompetence then it will just get thrown out on appeal (the stupid judge appeal). This is the wrong fight for AFACT.
October 7th, 2009 at 9:07 am James(Quote)
And in other news, Telstra are being sued by publishing companies for allowing people to read books to each other down the phone line -Australia Post will be next, for allowing people to send photocopies of magazine articles to each other in the mail.
October 7th, 2009 at 9:57 am ozsoapbox(Quote)
It’s true that they could be interpreted differently Mike. As someone who’s quite familiar with the internet I guess that’s something I overlooked.
The answer is simple, iiNet aren’t Telstra and AFACT are probably banking on the fact they don’t have billions to pump into a legal defense. iiNet are at the top end of the middle sized ISP’s in Australia and are therefore easy to make an example out of.
Not sure if Justice Cowdroy would be happy with this explanation though.
I imagine the video presentation was some guy clicking on a torrent link and then downloading a movie. It’s not going to be much different in a ‘live’ demonstration.
While it is interesting that an illegal activity might happen in court, you’ve got to remember that AFACT are representing half the movie industry so it won’t be hard for them to obtain copyright permission to download and temporarily distribute the file as well.
Short of seeing it with his own eyes I’m not sure what a live demonstration is going to achieve other then AFACT’s lawyers going ‘OMG judge see how easy it is! WE NEED TO BAN THE INTERNET!’
I’d like to believe AFACT aren’t going to win but they seem to have picked up a pretty clueless judge so I’m thinking it could go either way. It’s much easy to run a fear campaign when someone doesn’t understand the basic principles of the technology.
October 7th, 2009 at 10:04 am Ralph Nader QC(Quote)
I think calling the Judge a “moron” is harsh and unjustified. your analysis of the judge’s questions is just wrong.
Judges have an obligation to decide cases on the facts and not be influenced by any preconceived notions. Asking these seemingly dumb questions means that he receives information that can be challenged by the other side if it is wrong in some way. the alternative would be for the judge to spend a week explaining everything he knows about the Internet and that would open him to allegations of bias if he didn’t get it exactly right.
so better to play dumb, get the facts from the parties to the dispute and then make a decision.
October 7th, 2009 at 10:51 am Mike(Quote)
That’s true I didn’t think of that, does that mean that for the time that the download was active, it would be legal for everyone else to download it from them?
I may be wrong, but I thought the issue with this case was that of authorisation of the download? As in the iinet allow it, if someone else provides the connection to the court then doesnt this mean that they are authorising the download. I also thought that they were using this video as a demonstration to show the iinet users which were downloading Batman, which is why the judge asked which other ISP’s were downloading it? Maybe I am showing too much faith in the judge.
Providing that iinet have hired a decent laywer, then the underlying concepts of the case mean that they should win. I’m not saying file sharing is write, but its clearly not iinet’s fault.
Also if this does end up winning, then all its going to mean is that the companies pull out of being ISPs as it would be pretty impossible to convince someone to get an unlimited/20GB limit on their account when they can’t download anything illegal! Also I can’t even see how it is possible to police it.
October 7th, 2009 at 11:19 am ozsoapbox(Quote)
I can’t help but ask why Cowdroy interested in AFACT showing how other ISP’s allow their users to use the internet when he’s already rejected iiNet’s proposal to show other ISP’s handle AFACT’s complaints in the same manner.
Yesterday was the first day of the current hearing but it wasn’t the first day Cowdroy, AFACT and iiNet have appeared in court together.
I guess I’m just concerned that he’s just going to get an AFACT ‘hey watch this, 3 clicks adn you just downloaded ONE HUNDRED BAZILLION DOLLARS OF MOVIES!’ explanation which will detract from the point being contested of how are iiNet responsible?
Perhaps at the beggining but after already specifying the evidence criteria that will be used to argue the case, I’d have hoped the judge would at least have had some idea on the technology. What basis has he been making his previous rulings on?!
October 7th, 2009 at 11:23 am ozsoapbox(Quote)
Usually it’s the uploading of data from a userend that they try to get people on. They get the IP’s when users upload chunks of data to them.
I guess AFACT are going to contest that by not disconnecting users, burning down their houses and deporting them, iiNet are not doing enough to ensure their customers don’t download pirate material.
iiNet are arguing that it’s not their responsibility to do so and they aren’t doing any more or less then every other ISP in Australia (Exetel and their 3 strike policy aside).
ISP’s can throttle p2p to practically nothing and make it unusable (Dodo are great at this) but it won’t do anything for newsgroups/http or ftp transfers.
Currently all they are worried about is BT because that’s what most people are using these days. BT is easily throttled so I guess AFACT see that as a (temporary) solution.
October 7th, 2009 at 3:14 pm Jedi Analyst(Quote)
I’ve sat through quite a few cases. This is not surprising. Fact of the matter is that a judge is a specialist in the law, not downloading movies or telco.
That’s what the assisting QC/SCs are for. Explain the concept. If iiNet let the judge establish an erroneous viewpoint then thats their issue/stupidity.
This case is blown out of proportion. If AFACT win then they will lose it on appeal. If they lose then they will go back to harrassing the fed govt for legislation. Be more afraid of conroy dude.
October 8th, 2009 at 3:06 am Nick(Quote)
People still use p2p? Via your friendly browser Rapidshare and Megaupload are media distributors by the Petabyte nowadays not to mention Usernet with SSL encryption, no user logs of any description. No seeding too worry about. P2p might get killed off but other better free alternatives are to be had. AFACT are like Apple with its IPOD updates, a week after distribution a free Jailbroken update is ready to lock n load.
We have a generation of tech savy surfers now, all brought up on free content no court case is going to change their mindset.
October 8th, 2009 at 8:27 am Citizen-D(Quote)
Nick – Rapidshare and Usenet can’t even be put in the same basket as peer-to-peer and claiming they are better alternatives is ridiculous. Having a generation of people who can log into Facebook and accidentally post private details is not what I call ‘tech savvy surfers’.
October 8th, 2009 at 12:29 pm Nick(Quote)
Citizen D, I understand in many cases the Facebook crew have no idea of their privacy ramifications and usernet isnt for everyone but if you can run a p2p application both rapidshare and megaupload and the various other online file sharing web storage banks are kids play.
Search pages dedicated to finding any media or software uploaded to these services abound, all one needs is Winzip or Winrar and some very basic pc skills. The dedicated p2p users that do heavily download and seed are easy fodder for AFACT I have noticed via the Whirlpool forums many p2p users jumping ship and using other alternatives.
I say again a generation of users that have never paid for music,movies and software are something AFACT seem to think with their current business models are going to change overnight with a court case.
Threats of disconnection ect will just fall on deaf ears IMHO ISPS hosting free downloads like the ABC’s IView and Foxtel finally jumping on the bandwagon for downloads (how successful that will be is another question) The ABC model up to now has been hugely popular. Have to laugh it takes a tax payer funded media organization to show private media moguls what the future holds.
October 8th, 2009 at 4:58 pm ozsoapbox(Quote)
One thing to note with the alternatives is they usually always require extra money which puts most people off.
Usenet and rapidshare are useless without paid accounts (I have no idea about megaupload) and history has shown the majority refuse to sign up to a paid service beyond their internet fees.
November 1st, 2009 at 12:59 am Kevin(Quote)
The ISPs should pool their resources, hire lobbyist and educators and get stuck into the high court judges now because one way or the other that is where this case will end up.