Day 22: Film studios issue ultimatum to ISPs

By Ry Crozier on Nov 26, 2009 3:24 PM
Filed under Telco/ISP

Take copyright responsibilities seriously or leave the industry.

Internet service providers that shirked responsibilities to prevent copyright infringement on their networks should consider exiting the business, the Federal Court heard today.

As the copyright case between the film industry and ISP iiNet approached its conclusion, the studio's barrister Tony Bannon SC suggested ISPs that did not want to deal with infringement notices should "get out of the business."

"Businesses such as ISPs want to enjoy the benefit of being able to make money out of the provision of internet service facilities and they enjoy that benefit. But it carries with it a responsibility," Bannon told the court.

"They provide a facility that is able to be used for copyright infringement purposes. If they don't like having to deal with copyright notices then they should get out of the business.

"They're quite happy to deal with customer complaints or shaping accounts when it comes to making money, but there's a responsibility which is a requirement of law - one of which is the Copyright Act."

iiNet came under heavy criticism from the studios over its alleged failure to take any "reasonable steps" to combat infringement on its network.

"If an ISP in a case says ‘this is what we tried to do, we tried to deal with notices and these are the systems we use. We cant deal with every one' - let's assume [the ISP] get 100 of these notices per week and tried to process 25 percent of them.

"So they come to court and say ‘this is our reasonable response'. That may be one thing," Bannon hypothesised.

"But in circumstances where they do nothing, where they say they can't send a single notice to anybody, it's like saying they can't stop physical violence happening to the person next to them because there's physical violence happening all around the world.

"This might be a more testing case if they say ‘we have this procedure, we are responding, it's unreasonable to make us do more'. But that doesn't arise in circumstances where they are not taking any steps."

Bannon claimed that it wouldn't "take much with to say if they started taking action", terminated a customer or two and advertised the fact, it would in all likelihood reduce the number of notices it was receiving.

The case continues. You can follow the case in-full here. For a background on the case, click here.

Day 22: Film studios issue ultimatum to ISPs

36 comments in this discussion

"@ Digger11 "do not even need my comment - which I refuse to make." You just did moron."

By Rhino

Tags

iinet, afact, bannon, closing, submissions, ultimatum, copyright, infrignement, notices

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Comments: 36

techydude Nov 26, 2009 4:05 PM	it's presumptuous bluster for the studio's counsel to be saying this before the a judgement has been made. when the studios wake up and realise there is an internet, and actually start to engage with it whole-heartedly, and adjust their business models to cope with its vastly different vagaries than the physically-distributed 20th century, instead of pissing into the wind trying to go back to the good old days, then i'll respect them. in reality i already do, by paying for a LOT of online tv/movie content in the last 18 months. but they're so far from comprehensively responding to the realities of the internet that they still teeter on the brink of idiotic self-inflected collapse, as this case continues to demonstrate.
anonymous Nov 26, 2009 4:22 PM	Well, that's the end of our telephone and snailmail systems. Until these providers are prepared to listen to every phone conversation and open and censor every letter and parcel, they should get out of the industry. Riiiight. Why don't we just sign all our bank accounts over to the content corporations, or at least to their clever lawyers. Who knows, after the flawyers are done, there might even be something left over for those poor starving multinationals.
RDEFCON1 Nov 26, 2009 4:24 PM	1. Either Bannon needs a lesson or two in grammar, or he has been horribly mis-quoted. Half of the statements in this article make no sense at all! 2. Why don't the movie studio's also bring cases against the manufacturers of tape recorders, dvd burners, blank video cassettes and blank dvds? All of these items can also be used for copyright infringement, but noone would seriosuly argue these manufacturers also have a responsibility to monitor whether the use to which their products are put. If we were to follow this insane logical to it's natural conclusion, then the manufacturers of kitchen knives would have to monitors it's customers to ensure they didn't commit a violent crime using their knives. I can't believe this case even made it to court!
djzort Nov 26, 2009 4:24 PM	its very clear that the film industry isnt comfortable that it can embrace a new business model, a model that would embrace the internet and especially its ability to collate niche markets into a profitable business. despite their squarkings, they are still making many billions of dollars a year. people are still buying dvds and still going to the movies.
KB Nov 26, 2009 4:25 PM	These are some of the most ridiculous statements that could ever be made. "Businesses such as ISPs want to enjoy the benefit of being able to make money out of the provision of internet service facilities and they enjoy that benefit. But it carries with it a responsibility," Bannon told the court. This should read 'Movie makers want to enjoy the benefits of making money by making and selling movies, and they should make it their responsibility to make them available on the internet for a fee.' They know how to make Austar and Foxtel pay to show them, and tv stations. Afact better start getting ready to take channel 7 to court as well, for allowing people to use the recording devices to record their movies. Biggest waste of time and money that has ever occurred, even bigger than the stimulus payments.
Digger11 Nov 26, 2009 4:29 PM	Is iiNet still turning a blind eye to the known thousands of infringing customers ??? That is the real and only issue here.
Tailgator Nov 26, 2009 4:44 PM	'Take copyright responsibilities seriously or leave the industry.' Wow, what a really expensive way to make a press release. Bloody tossers !!!!! (As in slang def)
MountainDew Nov 26, 2009 4:57 PM	Digger11 - that's not true. The real issue is that we don't have adequate copyright laws to deal with infringements. The police have no powers unless it is a commercial scale infringement and the users put forward to iinet by AFACT were not on that scale. So how do you deal with them? iinet can't just cut them off, that makes iinet the judge, jury and executioner! There needs to be a process that AFACT could follow when they identify these infringements...it's hardly iinet's fault for protecting the privacy of it's users. there needs to be protection of people that are wrongly accused. Would you seriously trust information gathered by an organisation like AFACT to be 100% accurate? I think not. Bannon's comment that there needs to be a process in place is correct, but it should be the police or government to control it, not the ISP's!
Digger11 Nov 26, 2009 5:04 PM	So 100,000 iiNet customers downloading illegal copyright material , and iiNet not bothering to do anything to stop them is not "on a commercial scale " ??? Certainly large enough to give me the shits if I spent my hard earned money making a movie and had iiNet customers stealing from me.
whoshungry Nov 26, 2009 5:10 PM	Come on people, give the studios a break! Just coz they're not creative enough to adjust their "revenue losses due to the Internet", they need to make their money somehow!! For any lawyers reading these comments, I have a case I need to take to the courts. Basically, I want to warn the airlines to shut down and get out of the business if they consider to accept any laptops, CDs/DVDs or USBs on board that may contain any of the "studio's" material or material breaching copyright law of any kind!!
nate.cochrane Nov 26, 2009 5:16 PM	It's taken a while for the studios to wake up. This, from nearly a decade ago: http://www.laptoptv.com.au/laptop-tv-articles/2000/8/15/divx-puts-pirates-in-the-laptop-boxoffice/
Res Nov 26, 2009 5:20 PM	"Bannon claimed that it wouldn't "take much with to say if they started taking action", terminated a customer or two and advertised the fact, it would in all likelihood reduce the number of notices it was receiving." Maybe Me Bannon would like come talk to me? I have processed these notices before at a previous job, it was well known we did it, well known 3 strikes your out, guess what Mr Bannon, it made NO difference, nobody changed their ways, and as mentioned in the trial, terminate leacher here, leacher just goes to another ISP and does the same thing there, Mr Bannon if you believe they wont, you sir are even more delusional that I consider you to be now. Question I assume after you lose this case sir, you and AFACT are going to go after Telstra for providing the last mile copper? More of the alleged infringement data would pass their network than an ISP's. Lastly I do hope this case fails, because as brought out, there is no law compelling an ISP to act, furthermore there are NO checks and balances, AFACT are not a LEA, nor are ISP's, why should an ISP just take AFACTs word? If I want someone charged for a criminal offence, say assault, I have to PROVE beyond a doubt I have an injury and that the person I claim, did in fact inflict it, so why does AFACT feel its above the law? ISPs are not AFACTS private police force, despite what they think, one last thing, to show how flawed your clients systems are, we once got a copyright Inf Notice for a user who was sharing a file on BT, an OPEN SOURCE file, the user was entitled to share it, this sir just shows how flawed everything is and why there must be checks and balances and why if AFACT is serious,. it would apply to the courts for orders to obtain infringers details so they can be prosecuted in courts, why does AFACT choose not to do this, too much like hard work eh?
bitman Nov 26, 2009 5:23 PM	Just ignore Digger11, he cant come up with anything other than slander and defamation and if we was smart he'd shut up before he ends up in court himself.
bitman Nov 26, 2009 5:25 PM	s/we/he
iflowboy Nov 26, 2009 5:27 PM	I think it is astounding for a film studio to accuse another organisation of failing to be responsible for managing their property when the studio and the ISP have entered into no such formal agreement. As I beleive iiNet will succesffully argue in this case. They are a medium provider. It is not their role, nor have they been given such powers to actively police or enforce what customers choose to access whilst being connected to their internet service. The point of reference here is that the internet is a connection. Nothing more. If iinet were caching or storing copyrighted content on their servers and then allowing users to access, then they are breaching intellectual property rights - but I do not believe this is the case. I believe that the Film Studios are being expeditious in chasing the ISP because they do not have the ability to chase the real perpetrators of illegal activity - the iiNet Subscribers. And the crazy thing about all this is that the Film Studios could so easily eliminate such activity by actually engaging with ISP's and providing services in partnership with ISP's and that would in turn make the ISP's put processes in place to stop the piracy from happening. All it takes is a little bit of a mindshift from seeing the problem to seeing the solution. If the court rules in favour of the applicant, the message is that providers of communications technology are empowered to contravene our democratically legal rights to watch, read, write and listen to information we choose. It also opens the door for a car company to be sued because they sold a car with a CD player that allowed an owner to play their pirated CD in the car. How proposterous an idea and for the film studios to think any court will uphold this view. Sean.
iflowboy Nov 26, 2009 5:37 PM	Digger, the whole point of this case is that AFACT are accusing iiNet for perpetrating the act of breaching copyright - but iiNet have done no such thing. It is iiNet's subscribers who have perpetrated the act. AFACT should be petitioning the court for content reports identifying individual subscribers who have illegally downloaded copyright content (film content in this case) and then prosecuting them. AFACT are taking a "cut it off at the head" approach in the hope that they can make what is an illogical and value contravening argument to effectively deny people of our rights. AFACT should get their act together and tighten up their own security to cut the piracy off at the head. Have they sued the cinema's for allowing people to walk in with camera phones who make the pirate film copies, or sued theird distribution channels for failing to maintain enough security so that copies are not created - or DVD writer manufacturers for creating DVD writers that allow orignal DVD's to be copied????? Surely you must be able to see what the ramifications are for any court siding with AFACT.
hellfire Nov 26, 2009 5:56 PM	Bannon has had the wrong idea all along. It is AFACT's clients that own the copyright and their own responsibility to police it. The ISPs have no legal requirement nor do they own the material to protect so why should they to do the screening of internet content for AFACT at considerible expence. If the clients if AFACT wish to go after the pirates then they should find them and prosecute them through the courts themselves at their own expense. Not to mention the fact that an ISP can not disconnect anyone's service on a mere allegation which is all it is unless you get a court conviction. My prediction is AFACT will loose and we will all be sitting around observing what happens when this goes to Appeal anyway whatever the court's decision.
zag Nov 26, 2009 7:55 PM	Digger11: This could become a major major issue as any copyright holder could say someone is breaking the law and then the ISP would be forced into disconnecting a connection. Completely forget about this only being about iinet, as this very site is all copyright and if haymarket media (copyright holder)decided to send your ISP a disconnect notice well you'll be off the net without any questions asked. If this was passed through, then an ISP could with-in rights block say a film review site or a official film site why because the ISP could be breaking copyright holder laws. You may think it's strange or funny and wouldn't but why not if the film studios are sueing the ISPs why bother with their sites if they are only going to sue you/ISP.
Mordd Nov 26, 2009 8:07 PM	http://www.itnews.com.au/News/161436,telstra-unleashes-new-broadband-prices.aspx Telstra also said it was introducing new “high usage plans of 100 GB and 200 GB to satisfy the growing demand for movie downloads and more family members connecting at the same time.” ZOMG!!!! Quick, alert Digger11, alert AFACT, call in the military, quickly now, SUE TELSTRA AFACT!!!!!! ZOMG!!!!
rycrozier Nov 26, 2009 9:33 PM	@Mordd - we had roughly the same discussion in the office when that announcement was made.
ITrant Nov 27, 2009 12:34 AM	AFACT will not prosecute Big Pond because Telestra a.k.a Foxtel is a member of AFACT. Somebody needs to turn the argument back on AFACT - why aren't they making examples of individuals and prosecuting them? AFACT will not prosecute individuals, if they can get more money out of a company. The fact that the company is protected by law as the conduit, not the actual infringer, seems to have escaped this judge! This case should never have seen the inside of a courtroom. If this case parallels overseas cases & IF anyone bothers to check, the judge will be found to be a business partner of AFACT member companies. Anybody bother to check? At least publish the Judge's mailing address so we can let him know what the public thinks. The only 'possible' finding here is that iiNet complied with the law, even if AFACT is unhappy with the law. Watch this space…
pXk0BBM Nov 27, 2009 2:23 AM	<quote> "But in circumstances where they do nothing, where they say they can't send a single notice to anybody, it's like saying they can't stop physical violence happening to the person next to them because there's physical violence happening all around the world." </quote> Correction, its like AFACT coming along to Mr iiNet's house, and telling them there was 'physical abuse' happening in your front yard as you hadn't see it, rather than calling the police.. As you're meant to do.. Isn't the correct course of action to ring the police, and the culprits to be taken to court? What iiNet argues?
freman Nov 27, 2009 10:15 AM	ISP this, and ISP that - I can infringe on copyright by engaging in many forms of P2P transfer... direct dialing people (in which case, does my PHONE company encourage copyright infringement because it offers me 18 cent untimed calls?), posting people cd's (in which case does Australia Post encourage copyright infringement because I can bulk buy and save?), hand delivery (well, everything from public transport to petrochemical companies help with this)... An ISP is a service provider - they carry packets from point a to point b, hand it off at point b to another service provider that caries it on to point c, and so fourth... They don't look at the packets - just as your phone company doesn't listen into your calls, and the postal company doesn't read your letters...
brad23 Nov 27, 2009 10:18 AM	Next on Tony Bannon's list... Intel, Gigabyte, Western Digital, Cisco, Origin Energy, Telstra, Optus, TDK... you could name hundreds of companies who provide products or services which can be used to infringe on copyright. None of which have DMCA safe harbour provisions!
thartman Nov 27, 2009 11:38 AM	AFACT and the Movie studios need to wake up and smell the coffee. The internet, file sharing and technological progress itself is here to stay. Dragging an ISP through court because their users just want to consume content is beyond belief. iTunes got it right and changed the way we consume music, easily and cost effectively, and consumers loved it. The Movie studios themselves are at fault for not facilitating how people want to consume their content. AFACT (and Conroy) are living in the dark ages and would have us all hand-crank a black and white celluloid while the local school principal accompanies the action on piano. Get it together, AFACT, rather than spend millions of dollars on lawyers, spend your dwindling cash on a solution your customers want.
longsword Nov 27, 2009 12:30 PM	Seriously I think AFACT and other IP holders are going about this the wrong way. Make it easy to download movie/tv content for a small fee, say $1 an ep of TV or $5 a movie. By all means DFM it but make so it can play on all console fro example (I hate the WMP DRM which won't allow legal content I paid for to play on my PS3). I always buy the shows I watch when they eventually come out of DVD but why the 2-3 year in some cases delay - The whole thing is so they can on-sell to TV networks and as we all know the aussie networks play games like sjhowing a few eps then holding off for months sometimes before resuming. If the IP holders moved to this model they would make tons more money and illegal downloads would drop off quite a bit.
DazzaJ Nov 28, 2009 11:56 AM	This whole case is ridiculous. The movie makers boast of the mega millions they make yet still want more. Whats next? Sue the postage service because their service CAN be used to transfer illegal products! To stop it, lets open everyones letters and read them to make sure that don't contain illegal content.! I commend iiNet for supporting the rights and privacy of their clients. The bottom line is iiNet or any ISP ARE NOT law enforcement agants and neither is the AFACT group. If illegal activity was so bad, why didn't law enforcement agencies react?
vaxa Nov 30, 2009 9:34 AM	Well Well Well ... if they shut the door people will find the window ... I support AFACT concerns with the point that stealing is a crime ... but AFACT should stop being greedy and become more cooperative ... If AFACT comes to iiNET and tell them: "here it is 5 mil $, let's do something and get these nasty downloaders a** kicked", I do not think this will get to the court.
pricj004 Nov 30, 2009 12:21 PM	Too many deaths and injuries are caused by hammers each year and hardware stores need to be held accountable for enabling this behaviour. They want to enjoy the benefit of being able to make money out of the provision of hammers and they enjoy that benefit. But it carries with it a responsibility. Unless they're prepared to engage in 24 hour surveillance of every customer who purchases one of their hammers, or choose to sell only squeaky rubber mallets, they should exit the industry.
vaxa Nov 30, 2009 12:28 PM	and imagine the case with cigarettes? wow - there is a space for imagination
Sams Nov 30, 2009 12:55 PM	vaxa: "and imagine the case with cigarettes? wow - there is a space for imagination" Wrong analogy - cigarettes are always harmful when used for the purpose they are designed for. Hammers aren't. http://en.wikipedia.org/wiki/False_analogy
tho7m Nov 30, 2009 2:33 PM	@RDEFCON1 The knife manufacturers will happily provide the police with access to their sales records to try to track down a particular criminal, which is what the film industry are trying to ask for, albeit very badly. But looking at it with another analogy - if I have a store, and that store gets robbed, and the thieves make a get-away in a car, can I sue the government for providing the road on which the car was driven? Or can I even sue the manufacturer of the car? At best, I can go to the police to get them to investigate the owner of that car. In this case, iiNet are being asked to be the police, rather than to assist them. It should be the police requesting iiNet's records to attempt to pursue the film co's allegations of theft. To return to my store analogy, what AFACT are doing is the same as me asking the IT department of the motor vehicle registry to catch the bad guys, and then suing them for not doing so. Surely this would be quickly thrown out of court, as I should have gone to the police? If there is a crime being committed, then the AFACT are being vigilantes, and they should be prosecuted as such. At the same time, the police should investigate the alleged crime. If the AFACT succeed in this case, then the precedent is being set that a service provider is responsible for the damages caused by the users of its service if they do not actively prevent harmful use. So the precedent will have been set that the government, as a service provider, is responsible for the actions of any user of any of its services. This leads in to one last piece of complete lunacy: The government provides a judicial service to resolve disputes. If a company is sued through that legal system and is then out of pocket, does that make the government, as a provider of a service that caused the company a loss, responsible for that loss? Consequently, should iiNet be ready to sue the government if they lose?
vaxa Nov 30, 2009 4:14 PM	This is our law (as far as I know): Any ISP in Australia (if you have a carrier license) will track/record/monitor the IP traffic for specific IP hosts if police request them to do so. Any Telco in Australia (if you have a carrier license) will record/MONITOR the voice conversations (actually will provide facility to record) if police request them to do so. Recording/Monitoring of voice and IP traffic have never been a problem and is a very common thing today. so, why AFACT does not ask a police to request iiNET to record/monitor the IP traffic of the bad guys? Even Police can not ask Telco or ISP to disconnect customers, not sure if AFACT can do that. Any lawyers in the room, any comments, please?
Digger11 Dec 2, 2009 3:28 PM	The analogies are so bad and so wrong that they do not even need my comment - which I refuse to make.
Desk Dec 2, 2009 4:08 PM	@Vaxa The reason why AFACT doesn't go to the police about these infringements is because unless they are of substantial size (lets say 30,000 songs / movies) or AFACT can prove the infringer is making a profit from the infringements then the police will not bother as they have better things to do!
Rhino Dec 2, 2009 4:57 PM	@ Digger11 "do not even need my comment - which I refuse to make." You just did moron.