[LINK] More about iiNet suit - legal opinion on their side it seems

Richard Chirgwin rchirgwin at ozemail.com.au
Wed Nov 26 06:57:14 AEDT 2008

Stilgherrian wrote:
> On 26/11/2008, at 4:19 AM, Michael Still wrote:
>> Rick Welykochy wrote:
>>> Jan Whitaker wrote:
>>>> [What is Exetel doing bad-mouthing iiNet? Sour grapes perhaps?]
>>>> http://www.theage.com.au/news/technology/biztech/pirate-downloads-instant-cutoff-alert/2008/11/24/1227491443731.html?page=fullpage#contentSwap1
>>> This?
>>> "Unlike iiNet, Exetel forwards infringement complaints from the movie
>>>  industry to its customers. Linton said iiNet brought the legal  
>>> action
>>>  on itself by failing to play ball."
> Linton's comment is revealing. "Refusing to play ball" means he  
> reckons the rules of the game are that an ISP must/should pass on the  
> infringement complaints it receives from "the movie industry", and  
> that iiNet isn't playing by established rules. Why? Such notices are,  
> I understand, "mere" claims by the industry, i.e. allegations, not  
> legally-proven statements of fact. Just because "the movie industry"  
> has a profile and Nicole Kidman on their side doesn't make their  
> "complaints" any more valid than a "complaint" from any other random  
> third party.
> I have a business. If some random person or company, one who is  
> neither a client nor a supplier, comes to me and says "One of your  
> customers has been causing me grief and I want you to make them stop.  
> Give them this legal-looking threatening letter", why should I even  
> give them the time of day?
> Now if the random person was a court order or a search warrant or  
> something else which had a bit of legal due process behind it, it's a  
> different story,
> This in a nutshell is the question which this lawsuit will perhaps  
> answer. There's a nice legal analysis of AFACT's claim at APC. It's  
> worth reading in full because this will probably an important test of  
> the "safe harbour" provisions for ISPs in the Copyright Act.
>      http://apcmag.com/afact_v_iinet_the_case_that_could_shut_down_the_internet.htm
Particularly of interest is this quote:
> Of course White’s view is not shared by everyone. Ian McDonald, the
> Senior Legal Officer at the Australian Copyright Council disagrees. He
> believes that iiNet infringed copyright by virtue of making copies of
> infringing material either in their cache or even by virtue of being
> stored temporarily in their routers. McDonald believes that “Where
> material is being cached temporarily through an ISP’s network then
> they have reproduction occurring even if they are not aware of it.”
> McDonald believe the issue will come down to what remedy AFACT will
> have against the ISP which could include an account of lost profits or
> other damages.
Now, this is a big "shut down the Internet" aspect of the copyright
owners' case, because the ISP's cached / routed copies of data would be
infringing even if the customer is purchasing legal content.

If I were a complete tragic and decided I must rent movies over the
Internet, then what appears on my screen is a legal copy. However, the
ISP hasn't purchased the content, yet it is still creating a copy, most
certainly within its routers even if it does not cache the content. So I
can't see how the Internet can be used to deliver anything without the
technology itself "infringing", at least in the insanely opportunistic
view of the Australian Copyright Council.

> Stil

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