Telco/ISP

Day 12: iiNet police referrals branded "cynical"

"iinet count uploads. to me that's anti p2p. are other isps with unlimited uploads encouraging p2p? cuz lets be realistic, without uploads, it's just leeching, and the whole ethos of p2p would die."

By libelle

AFACT v iiNet: The judgement in full

Crunch: iiNet victorious over AFACT; Frustrated banker busted on live TV

Day 20: AFACT snoops “arguably” committed crimes in iiNet probe

Exetel drops infringement policy after iiNet win

Breaking Stories

Microsoft denies Windows 7 battery problems

Ex-Intel executive owns up to insider trading

Optus to boost HFC network up to 100 Mbps

Microsoft launches Surface, unveils partners and customers

Opinion: Webjet brings 'cloud' claims back down to earth

By Ry Crozier

Nov 3, 2009 7:47 PM

Cloud over whether AFACT evidence pointed to criminal activity.

ISP iiNet referred the film industry's copyright notifications to the police despite knowing the authority could not act, it was alleged today.

Legal representatives for the film industry alleged in the Federal Court that the ISP knew the Police could not act as the allegations were of a civil rather than criminal nature.

As iiNet chief Michael Malone‘s cross-examination resumed, the film industry's lead barrister Tony Bannon branded iiNet's policy of referring evidence of alleged copyright infringement to the police as a "cynical step [Malone] organised [so as] to have the pretence of taking steps to prevent rampant copyright infringement" on its network.

Malone disagreed with Bannon's assertion.

"iiNet devised, under your authority, a response which interpreted the AFACT letter as criminal conduct in order to justify your response of passing the material off to police in circumstances where iiNet knew it was a cynical and nonsensical response, do you agree?" Bannon alleged on the third occasion.

"No I don't," Malone stated. "We knew we couldn't do anything about [the allegations] directly. We passed [them] to someone who could and if they couldn't assist themselves we knew they could help by directing AFACT [the Australian Federation Against Copyright Theft] to the relevant authority."

Bannon referred Malone to an email dated 29 July 2008 that he was allegedly copied in on that referred to the first three letters iiNet received from AFACT drawing attention to alleged infringements on the ISP's network.

The letters provided a list of IP addresses of accounts where alleged infringements had been recorded by film industry investigators.

But Bannon claimed there was "no allegation in that [AFACT] letter [to state] that any customer of iiNet is engaging in any activity on a commercial scale" - a factor that would be crucial in changing what was a civil matter into a criminal one.

He also claimed the letter included no allegation by AFACT of anyone committing a criminal offence.

"There's no allegation of illegal conduct in the sense of criminal conduct, is there?" Bannon queried Malone.

"No," Malone replied.

"You understood police have the authority to investigate alleged criminal conduct but have no jurisdiction to investigate the breach of a civil right such as a copyright?" Bannon pressed.

Malone agreed but alleged iiNet "had not ruled out" the possibility that a criminal offence may have been committed based on the data supplied by the film industry's investigators.

"There was still the potential for this to be of criminal scale," Malone said.

"We were talking about 100s of 1000s of [alleged] offences [being sent to us]."

Bannon also alleged iiNet were not prepared to provide the police with any information matching the IP addresses in the AFACT notices to the ISP's customer records to help authorities determine whether or not there was sufficient evidence that a single iiNet customer had infringed copyright on a "commercial basis" - making the matter criminal.

"We couldn't so we didn't," Malone responded, referring to provisions under the Telecommunications Act that iiNet have maintained throughout proceedings do not allow it to perform such matching activities without a warrant or court order.

Malone said iiNet did facilitate matching requests for law enforcement and government agencies "on a daily basis" where an appropriate order was gained but said he had "been told by the Attorney-General's Office we can't disclose the exact amount of those requests [we receive].

"If police wanted to move on this one [the AFACT materials] they could have issued a similar warrant," Malone alleged.

"We'll comply with a court order or any other legislative instruments."

Bannon pressed on: "But iiNet sent the material to an agency which you understood only had jurisdiction to investigate criminal conduct, in circumstances where AFACT wasn't investigating criminal conduct?"

"AFACT was simply saying [to us] you have to do something. We didn't know what [and they‘d] given us no guidelines on what that action should be," Malone responded.

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

Comments: 23

Thoughts on this article? Add a comment below.

Digger11 Nov 4, 2009 8:36 AM	I am guessing that Malone has either got his fingers crossed behind his back when answering the questions or is turning a very very dark shade of red. Being a smart ass at management meetings and big noting yourself is one thing, being caught out by the prosecution is another. iiNET Fanboi's better stop[ following this story as it appears that your exulted leader may not exactly be as perfect as you may think. BTW: Just because a Managing Director posts on Whirlpool does not make him what you all think he is. Just look how he is acting in court.
Ghat Nov 4, 2009 9:12 AM	Forgive me for sounding stupid. I thought 'Copyright Infringement' was a crime. Is this not the case? Then why does every movie that I watch have a warning notice saying that it is? If copyright infringement is a civil matter then it should be up to AFACT to bring the individual offender to court. If copyright infringement is a criminal matter then it is a matter for police investigation. Is this not correct?
Desk Nov 4, 2009 9:34 AM	Yes copyright infringement is not a criminal act and the ads that state that copyright infringement is stealing is completely untrue. This is a civil matter and AFACT should be taking customers to court but they won't because it is such bad publicity. AFACT decided that taking the ISP to court would cause less of an outrage against them (which is probably true)
IPfarmer Nov 4, 2009 10:11 AM	I fail to comprehend that if someone walks away with a dvd in the pocket from a music shop that is a crime but if he or she does it electronically it is a civil matter. What is the difference in substance?
Ivan Nov 4, 2009 10:31 AM	Digger11: What vested interest do YOU have in defending AFACT? Do you not agree it's AFACT's responsibility to bring offenders to civil court in the case of copyright infringement? Which includes requesting warrants to obtain user information from ISPs?
KJ Nov 4, 2009 10:50 AM	His vested interest ? Paid troll and turfer no doubt.
dalboz Nov 4, 2009 11:00 AM	Desk, you make a good point. I had been wondering why AFACT didn't just pull an RIAA and sue the individuals. IPfarmer: The DVDs in the shop are legitimate copies of the movie. Its the act of copying a legitimate DVD and uploading to the P2P network which is the infringement. I, too am suspicious of Digger's one-sided comments. I strongly believe that pursuit of infringers should NOT be the ISP's responsibility. The posting drugs in the mail argument should be enough to settle this case. Without any legal precedent, its perfectly understandable that ISP's would not want to attack their customers for fear that it would be commercially damaging. Think about it, the first ISP to do this off its own back will just lose all its customers to other ISPs with a more lax copyright policy, such as iiNet.
Ronny Nov 4, 2009 11:20 AM	IPfarmer: If you walk out with a DVD, the shop owner no longer has the DVD. If you copy the DVD, it's illegal but the only loss is of a (notional) sale. Digger11: I'd suggest that you actually read up a bit about copyright and privacy laws before pointing fingers. The letters from AFACT are basically hearsay. If iiNet were to pull the plug on their users on the basis of hearsay, their customers could sue them for breach of contract, and there's little doubt they would win. The case is a matter of AFACT trying to force iiNet (and eventually all other ISPs) to impose some sort of disconnection policy on their customers. The only way they could do so is to write such a policy into their contracts in such a way that an allegation from AFACT is cause for termination. To say that AFACT's case, as represented here so far, is weak, is to give it far too much credit. It's akin to your bank cancelling your mortgage because somebody walked into one of their branches one day and told them you were growing marijuana in your backyard.
stevo58 Nov 4, 2009 1:37 PM	I don't know which court case digger11 is watching 'cause he's seeing stuff that just isn't happening. I think that AFACT's beak has no business attempting to ask technical questions of do technical demo's if yesterday's debacle is anything to go by. AFACT isn't doing themselves any credit by pursuing this case, especially using the line of attack. They basically need to get themselves into the 21st century and embrace the new technologies and they will make more money than they ever dreamed of. iiNet shouldn't even be on trial here - I know why don't we sue Holden or Ford for selling cars that are sometimes used as a getaway car in a bank robbery.
Digger11 Nov 4, 2009 2:41 PM	Stevo58 - iiNet Fanboi's can be blind. Facts are that iiNet has actled totally irresponsibly at best in this whole debacle. You can deny it if you like - but to use your [stupid] analogy, iiNet were designing (and promoting) their cars for bank robbers and when the banks asked them who they had sold their cars to, Malone said 1. they had no policy, and 2. it would be too difficult to build sytems to tell them. This despite the fact that all of the other reputable ISP's were following the rules. Fanboi's (and iinet employees) are often blind to the truth.
pct_85 Nov 4, 2009 3:04 PM	IPfarmer - from what I understand when you buy a DVD you purchase two things. Firstly, you purchase a physical disc which contains copyrighted data. This you can steal. Secondly you purchase a license (typically a home use license) that allows you to have that copyrighted data and use it under particular conditions. Technically it is impossible to steal the license as it is an agreement between you and the copyright holder. So people who buy copies of DVD are buying the DVD but not a license and so infringe the copyright. People who pay to download a movie are paying for the license that allows them to keep the movie data on their computer. Copying that data may infringe the license.
Sams Nov 4, 2009 4:13 PM	Digger11 wrote: "This despite the fact that all of the other reputable ISP's were following the rules." Would those be the rules that exist only in your head?
Tahlin Nov 4, 2009 4:29 PM	Digger11 - you're still completely missing the point. In your analogy, the bank would have no right to ask the car manufacturer for details about their customers. The bank would have to go to the police, who would then get a court order to get the info from the manufacturer. It's not up to the manufacturer what the driver can and can't do.
Digger11 Nov 4, 2009 4:37 PM	@Sams - No rules in head is a Malone special. Most ISP's have written rules and policies. I think thay are even published on their websites if you bother to look. @Tahlin - Analogy continue (and are irrelevant by but fun). Let's say iiMaserati realises that its cars are being used in all of the bank hold-ups but does nothing to disuade customers form robbing banks and will not help the investigations by the bank into the robbery. At best this is total immoral behaviour, if not illegal. iiNet Fanboi's just don't get it. All of the other ISP's were willing to help, why wasn't Malone ? Does he think he is God? or maybe he is just dumb. Who knows.
MungBurger Nov 4, 2009 4:49 PM	Stevo58 - I would say your analogy is close to the mark. But in this case holden / Ford are not being accused for making the car used in robbery. The road provider is in strife because a car used in a robbery used their road. AFACT probably realise they can't effectively pursue alleged offenders individually, there's probably no point / gain in going after the torrent client developers - no cash there. So who else does it leave in their sights?
NumbNuts2009 Nov 4, 2009 5:01 PM	wow .. digger sounds like a u-beaut fair dinkum bonza aussie - not. but heres something to ponder, recent surveys seem to show that more actual money is spent on music cds by guess who? yep, you guessed it, people who download illegal music mp3?? perhaps instead of attacking iinet, they should be thanking them.
Digger11 Nov 4, 2009 5:47 PM	Hi Numbnuts - 6th generation Aussie here [deleted text - pointless. mod]. My relatives built this great country. Are you an iiNet Fanboi ? This place seems to be an extension of whirlpool at the moment. Anyway, I am in the ISP industry and don't care a rats about illegal d/ling - we were all well aware of what iiNet was doing to get more customers and I am very excited that they have received their day in court. Form the transcript it certainly sounds like Malone was squirming - if I wasn't in a different state I would have attended for my own enjoyment. Anyway, have to go, got to get those gb's of Linux Distro's downloaded before my quota runs out !!! Edited by rycrozier: 4/11/2009 11:03:25 PM
zag Nov 4, 2009 6:01 PM	iiNet should have said "why... do you expect us to take over the role of the police in this matter?" The overall problem is that AFACT don't want to deal with the police and want to side step the laws of Australia. Then again maybe it could be Diggers ISP that get taken to court for some customer stealing copyright files via his network!!! I bet he'd love to be un-employed for not doing Hollywood's dirty work for them.
stevo58 Nov 4, 2009 6:50 PM	Crikey Digger11 - 6th generation, by my calculations does that make you a descendant of convicts? You really have a hard-on for seeing iiNet 'squirm', it appears to be clouding your view of the situation. You seem to think that we are all iiNet 'fanbois' but the fact of the matter most of us are just looking for some fairness in a legal system which seems to be out of control (if this ridiculous case is anything to go on). AFACT apparently has no clue that this is causing their 'cause' untold harm. For someone who is so 'Aussie' you don't seem to have a sense of fair play - just an AFACT stooge
CodeSeeker Nov 4, 2009 8:04 PM	Well there was certainly was atleast one criminal matter involved, hence passing on the information to police was the most appropriate step. Apparently a few private investigators paid to download and possibly upload material on bittorent. I don't know about you but getting monetary gain from priacy certainly sounds illegal to me. Whether or not it was authorized i'm sure IInet was not aware of any agreeement between the the investigators and AFACT hence they should have alerted the authoritizies which they did. Disclaimer: I am an IInet customer. In the the last 3 years I been on BT for a few days, and didnt like it. I am not related to AFACT, I am probably not related to Malone up to atleast the 6th generation.
Sams Nov 5, 2009 12:10 AM	Digger11 wrote: "This despite the fact that all of the other reputable ISP's were following the rules." Me: "Would those be the rules that exist only in your head?" Digger11: "Most ISP's have written rules and policies. I think thay are even published on their websites if you bother to look." You seem to have lost the plot somewhere. Can you point me to the "rules" on iNet's site that iiNet are not following with respect to not passing on notices from media companies to users? No? Didn't think so. You are trying to imply that iiNet are breaking "the rules" (as you put it) by not passing on notices to users. Presumably "the rules" are some set of arbirary rules that exist only in your mind, because they certainly don't exist in Australian copyright law.
elvey Nov 5, 2009 11:29 AM	From my understanding only rules and regulations as published by an ISP relevant to the disclosure of customer information is the privacy policy. iiNet are certainly not the only ISP with limitations on the information they pass on. Internode's policy essentially states they will not pass your information on to a non affiliated third party unless legally required to (http://www.internode.on.net/pdf/legal/sfoa-privacypolicy.pdf) Telstra also have a similar provision with more categories of third parties exempt but the telling provision is that they will disclose your information to “government and regulatory authorities and other organisations, as required or authorised by law" (http://www.telstra.com.au/privacy/privacy_statement.html) I believe almost if not all Australian ISPs should have provisions in their privacy statements to prevent them passing on your details to unspecified third parties unless required by law. As this is a civil case I understand AFACT must get a court order (or set a precedence in a case such as this) in order for iiNet or almost any other ISP to divulge this information. Of course this doesn't mean that an ISP doesn't have to do anything until AFACT get a course order. If AFACT can show that a breech of copyright has taken place (which I believe they did) then I am pretty sure that the ISP is supposed to corporate to the best of their abilities. This case will impact on all ISPs, not just iiNet because this will determine what any ISP must to in the case of a complaint about copyright infringement. It is anyone’s guess what they will have to do to comply with such notices but I just hope it doesn’t mean giving out users information because no ISP has the resources to properly verify every complaint in order to decide if they should comply or not. So this case is not just for "iiNet fanbois" but for any Australian concerned about their privacy online and it is disappointing to see it trivialized in such a manner
libelle Nov 5, 2009 2:37 PM	iinet count uploads. to me that's anti p2p. are other isps with unlimited uploads encouraging p2p? cuz lets be realistic, without uploads, it's just leeching, and the whole ethos of p2p would die.