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

Frank O'Connor francisoconnor3 at bigpond.com
Wed Jul 13 23:28:03 AEST 2011


On 13/07/2011, at 10:41 PM, Paul Brooks wrote:

>> 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.
> [rest deleted]
> 
> Whoah Frank, get off your high horse - I know about AFACT'S allegations, iiNet's
> defence, and the various arguments back and forth including the various judgements.
> I was not defending AFACTs position, or their arguments.
> 
> I was simply responding to Jan's:
> 
>> 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
> to point out that there *are* obligations on an ISP to 'police' some forms of activity.

I know that Brooksie ... but quoting one section of one Act and expecting it to illustrate all tends to be a tad simplistic.

ISP's are covered under a vast assortment of legislation (aren't we all), regulation and common law that is confusing to say the least. The jury is still out as to whether they are common carriers, publishers, data conduits, deliverers or can be simply described by any one of a number of roles and functions they ostensibly pursue.

And whether a person or entity actually has copyright, or is a beneficial owner is another area of contention. What if a movie producer's copyright relies on a previously expired copyright (say, a Bronte Sisters story that had previously been filmed). What if the person they licensed the original copyright off hasn't been compensated according to contract? What if jurisdictional issues apply? Etc etc etc ...

All I essentially said is that iiNet met its obligations under the Telecommunications Act ... and that the court acknowledged that (in the judgement from memory) so rehashing section 113 doesn't add much to the debate.

Second, they don't have an obligation to 'police' their subscribers. They have an obligation not to encourage breaches of the law, and they probably/may have an obligation to refer suspected breaches to the relevant authorities (although this isn't clear ... I suspect iiNet was probably just playing it safe by doing so.) I see nothing in the Telecommunications Act that makes an ISP an effective policeman, or judge, or jury or law enforcer or whatever ... so to that extent Jan was correct. 

And given that iiNet is a corporation, it doesn't even have powers of Citizens Arrest. (Check the various Crimes Acts/Criminal Codes of the Commonwealth and States if you don't believe me) Even if an ISP was a person/partnership ... you have to go very carefully with using powers of Citizens Arrest as you can easily be sued for false arrest, trespass and the like. Real police enjoy protections from those little numbers. They enjoy a public indemnity against consequences ... subject to some limitations of course.

Finally, generally speaking as I said in the original reply, police don't get involved in civil matters unless they are enforcing court sanctioned remedies/judgements and the like (and generally they are just there to prevent an affray/assault or whatever even then). So, if the copyright holder wanted to pursue the matter in a civil court/jurisdiction they would avoid it, because they have enough in the way or criminal and other matters on their plate. And given that it was never made clear by AFACT in their case whether they wanted prosecution of, or evidence collection for a civil case by, the ISP's ... whether Section 113 would even apply is very unclear. And if they wanted criminal prosecution, why weren't they putting the heat on the WA police?

The upshot is that  Jan WAS RIGHT. ISP's are not police and they have no powers or obligations to act like police. 

And unless and until there is a clear legal obligation on ISP's to 'police' (by detecting and prosecuting cases of breach), and judge (by applying a 'three strikes rule' or whatever) and enforce ... then quoting Section 113 of the Telecommunications Act is singularly pointless.

> 
> I didn't make any comment about whether copyright infringement, real or alleged, might fall into this bucket.
> 
> Its simply a fact - Don't shoot the messenger.

Again, I know that, Brooksie .... but you were giving the impression that ISP's were obliged/empowered to do something they were not entitled to do, and have never been obliged, entitled or empowered to do.

I simply corrected that impression.

												Regards,



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