[LINK] iiNet case now in court

Rick Welykochy rick at praxis.com.au
Thu Mar 26 14:44:31 AEDT 2009


Jan Whitaker wrote:

> http://www.theage.com.au/news/technology/biztech/iinet-faces-the-music-in-landmark-case/2009/03/25/1237656984092.html
> 
> This line got me:
> The studios' lawyers admitted that DtecNet's evidence could only tell 
> them that an iiNet user was illegally downloading, but could not 
> identify the individual customer.

As well, DtecNet's evidence would likely consists of inspection and recording
of individual packets of bit torrent data streams. If they solely go by the
name of the file being transfered, that, IMHO, is not sufficient proof of
copyright infringement.

The question becomes whose copyright? Just because a bit torrent file is
called "Crash 2003.avi" does not mean the file contains either of the two
popular commercially released films called Crash.

I would imagine that prove infringement, the actual content of a copyright
item would have to be demonstrated to have been download. And a substantial
portion of that content.

But hold on here, as has been raised before, why should iiNet be responsible
for policing what is privately held "property", owned by a corporation
(or possibly an individual, but I strongly doubt it in this case)?

This is an extreme form of externalizing costs. And blame-shifting.



> What it seems is the studios expect the 
> ISP to datamatch for them.

I don't think so. Not at all. The crux of this case is whether iiNet, the data
carrier, is responsible rather than individual customers.

If the plaintiff were provided with enough data to do a reliable datamatch of
download content to customer, they would then normally be expected to pursue
each customer individually, as they have already been doing in the USA.

This time around, the plaintiff is attempting to do a "reverse class action"
in which they can punish all Internet customers (including those who do and those
who do not download their copyright content) via iiNet in this case.

If iiNet loses and the plaintiff is awarded damages, that could be the beginning
of the end for ISPs in Australia. Unless they buckle down and join in the current
censorship rage an block P2P downloads.  Impossible, you say? Darn tootin'!

If iiNet loses criminal charges could as well apply. And if they did, say to the
directors of the company, I htink all hell would break loose.

This is a very smelly can of worms. And a very important test case.

And think about this. If iiNet is found guilty, then every entity upstream of
iiNet is theoretically guilty as well. As a matter of fact, logic would dictate that
by this one precedent future similar actions could be taken against *ANY PART*
of the Internet infrastructure that carries P2P packets.

cheers
rickw



-- 
_________________________________
Rick Welykochy || Praxis Services

aibohphobia  -  the fear of palindromes



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