[LINK] Graduated Piracy Response Coming To Australia, Or Else

Wed Jul 13 20:40:40 AEST 2011

Interjecting ...

1. Nothing in there says it is the ISP's obligation to protect personal property rights or the (often disputed) copyright of copyright holders.

2. As yet, copyright law hasn't melded with the criminal law, or the communications legislation in this country. Hey, it's only in the last 10 years that its been updated for those pesky digital thingamummies. Basically as the advertisement says, breaching copyright as a criminal offence is treated as theft (and all the different facets of the Theft have to be proved to gain a criminal prosecution)... but most copyright litigation rests on civil disputes over who holds it, who licenses it, and what damages are applicable for misusing/stealing it. Nothing in the Telecommunications Act facilitates assisting in civil suits.

3. iiNet was scrupulous in advising the WA police of every breach that occurred that had been notified to them by copyright holders. What they did not do was provide connection/socket data to AFACT or any other copyright proprietor body, or pursue the matters any further. Their contention was that advising the WA police more than fulfilled any obligations under the Telco and other legislation.

4. iiNet did not see it as their duty under any legislation to infringe on their customer's privacy and or enjoyment of their connection any more than this. (Hey, they do have obligations to their customers as well, under statute, under contract, and under the common law ... all of which otherwise conflict with each other.)

5. The industry neglected to provide funds for iiNet to engage lawyers to research the grey areas in each case, to resolve the conflicts bewteen different laws, to scrupulously examine connection logs and the like for evidence, and to write up each case for referral to the police ... so iiNet took the most cost effective route to comply with (amongst other things) the Telecommunications Act

5. The court obviously agreed with them ... as the decision attests.

After the decision the ball was placed back in AFACT's court. They elected to continue the game based on the old rules (under which they had been defeated), rather than adjust their business models, embrace the new and/or look at other perspectives for approaching the problem.

The situation is not as simple as a reading of Section 313 of the Telecommunications Act.

								Regards,
---
On 13/07/2011, at 12:08 PM, Paul Brooks wrote:

>> What AFACT doesn't seem to want to understand is that copyright is 
>> enforceable by the rights holder and NO ONE ELSE. If they want to 
>> take legal action against the copyright breaker, then go for it. No 
>> one is stopping them from going to the courts and filing charges. But 
>> it is NOT the "obligation" of an ISP or a phone company or any other 
>> common carrier to police what their customers do on the network. Correct?
>> 
>> Jan
> 
> At the risk of injecting facts into the debate, and without supporting the AFACT
> position in anyway....
> 
> No, not quite correct.
> 
> Section 313 of the Telco Act:
> 
> *313  Obligations of carriers and carriage service providers*
> 
>             (1)  A carrier or carriage service provider must, in connection with:
> 
>                     (a)  the operation by the carrier or provider of
> telecommunications networks or facilities; or
> 
>                     (b)  the supply by the carrier or provider of carriage services;
> 
> do the carrier's best or the provider's best to prevent telecommunications networks
> and facilities from being used in, or in relation to, the commission of offences
> against the laws of the Commonwealth or of the States and Territories.
> 
>             (2)  A carriage service intermediary must do the intermediary's best to
> prevent telecommunications networks and facilities from being used in, or in relation
> to, the commission of offences against the laws of the Commonwealth or of the States
> and Territories.
> 
>             (3)  A carrier or carriage service provider must, in connection with:
> 
>                     (a)  the operation by the carrier or provider of
> telecommunications networks or facilities; or
> 
>                     (b)  the supply by the carrier or provider of carriage services;
> 
> give officers and authorities of the Commonwealth and of the States and Territories
> such help as is reasonably necessary for the following purposes:
> 
>                     (c)  enforcing the criminal law and laws imposing pecuniary
> penalties;
> 
>                     (d)  protecting the public revenue;
> 
>                     (e)  safeguarding national security.
> 
> Note:          Section 314 deals with the terms and conditions on which such help is
> to be provided.
> 
> There is more, see
> http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/consol_act/ta1997214/s313.html?stem=0&synonyms=0&query=obligations%20of%20carriers%20and%20carriage%20service%20providers
> for the rest.
> 
> 
> ISPs are Carriage Service Providers, and do have an obligation to 'do their best' to
> prevent their network from being used to commit an offence - by their customers, or by
> anybody else. "Do their best" is subject to interpretation, and of course they also
> have other obligations, including of preserving their customer's privacy, and
> complying with their service contract.
> 
> However, it is not correct to say "it is NOT the "obligation" of an ISP or a phone
> company or any other common carrier to police what their customers do on the network."
> 
> Paul.
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