AfterDawn: News

Hollywood loses court battle with ISP

The Hollywood studios have lost a landmark case against the ISP iiNet today after an eight-week trial.

The case would have impacted how Australian ISPs would have had to react to potential pirates, but the judge ruled that iiNet was not responsible for the downloading habits of any of its subscribers.



Justice Cowdroy said all the evidence showed that iiNet was simply providing Internet service for its customers, not facilitating piracy. He did conclude, however, that iiNet had knowledge of infringements occurring and did not anything to stop them, which was fine as the ISP is simply "a legitimate communication facility," not "intended nor designed to infringe copyright."

"iiNet is not responsible if an iiNet user uses that system to bring about copyright infringement ... the law recognises no positive obligation on any person to protect the copyright of another," Justice Cowdroy added.

Written by: Andre Yoskowitz @ 4 Feb 2010 17:41

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• 32 comments

• cyprusrom

  Wow, I guess common sense dos still exist, is not just a myth...or maybe only happens in Australia...
  No one finds the gun manufacturers guilty because some people use their product to break the law...

  4.2.2010 18:09 #1

• windsong

  A Hollywood studio in California, U.S.A suing an ISP in... Australia!
  
  Um, yeah..that'll work! LOL

  4.2.2010 19:09 #2

• slickwill

  The judge's bias against the U.S.A is probably what won this court case....LOL

  4.2.2010 19:54 #3

• cyprusrom

  Originally posted by slickwill: The judge's bias against the U.S.A is probably what won this court case....LOL
  ...or probably because there not everyone is brainwashed and with their hands in Hollywood's pockets. Maybe the case was won purely on common sense...

  4.2.2010 23:43 #4

• xboxdvl2

  ive said it many times the isp is providing an internet connection nothing more.im glad Hollywood studios lost I'm in Australia.Australias good you can modify consoles without fear of prosecution, you can drive cars with dodgy parts and dodgy looking paint jobs and rust.In a way we are slack sometimes here but the people like it that way.
  

  PS2 with 12 games.

  5.2.2010 00:25 #5

• KillerBug

  Quote:Originally posted by slickwill: The judge's bias against the U.S.A is probably what won this court case....LOL
  ...or probably because there not everyone is brainwashed and with their hands in Hollywood's pockets. Maybe the case was won purely on common sense...If you think that the australian courts are not run by morons, then you don't know anything about them at all. It is just because it is a USA company who pays no taxes to australia, sueing an australian company that does pay taxes to australia.

  5.2.2010 02:33 #6

• borhan9

  this is great news for the new year. David and Galayath kinda battle there. Us Aussies do not get pushed around easily by Hollywood peeps :)
  lol

  5.2.2010 05:08 #7

• bogwart16

  Quote:If you think that the australian courts are not run by morons, then you don't know anything about them at all. It is just because it is a USA company who pays no taxes to australia, sueing an australian company that does pay taxes to australia.So the application of Australian law and a legal system run by morons is the reason why this case was unsuccessful for Hollywood? I suggest that you are applying the term 'moron' to the wrong address.
  
  Judges may suffer from many shortcomings, but I think you'll find that as a general rule being a moron is not one of them.

  5.2.2010 08:59 #8

• siber

  Maybe it won't make sense to sue the telephone company for obscene phone calls made on their network.

  5.2.2010 11:18 #9

• davolente

  Wonder if that ruling will have any effect on Mr. (I refuse to use the term "Lord") Mandelson's Digital Economy bill here in the UK? Doubt it, somehow. Guilty until proved innocent without due process, it would seem. That man needs to be stopped.

  5.2.2010 17:49 #10

• ps2god

  they can not hold any ISP responsible for what there users download that been said if they tried to go after every person suspected of downloading copyrighted material igallily then that in it self would be an impossible task that means they wold have to have teams of people monotoring every byte of information that is downloaded from every account cant see it happening imo

  5.2.2010 18:06 #11

• cyprusrom

  Originally posted by ps2god: they can not hold any ISP responsible for what there users download that been said if they tried to go after every person suspected of downloading copyrighted material igallily then that in it self would be an impossible task that means they wold have to have teams of people monotoring every byte of information that is downloaded from every account cant see it happening imoTo monitor and hold accountable every person would not be possible, jey just play "care tactics", ruin someone's life and try to make an example of them hoping to instill fear.

  5.2.2010 18:10 #12

• ps2god

  here is some food for thought if all if of the movie studios are so worried about people downloading there movies illegally why dont they all get together and put them up on a legal site where they charge a small amount$7-$8 for people to download them legally like the record companies have done with itunes and a meriod of other legal download sites if they were to do that the illegal downloads would soon disapear or at least be greatley reduced in number after all is this not the way we will be heading in the not to distant future anyway?

  5.2.2010 18:33 #13

• heyjohn

  Common sense does occasionally prevail, even in a court room. The AfterDawn community should rejoice in this decision, rather than propose cynical reasons for the outcome.
  
  If you have been reading news items about dozens of similar or related cases all around the world over the last five years or so, you'd have to wonder whether "justice" is even a consideration in the dispensation of copyright law.
  
  We have all seen stories about a single mother getting fined millions of dollars for sharing a handful of mp3s on some P2P network, or perhaps a 16 year old kid being dragged through court for burning a copy of some game. In a perfect world, the judges in all of these cases would have thrown the entertainment company lawyers out on the first day, telling them to apply their considerable resources to figuring out a better way to distribute their products, rather than concentrating on sending potential customers to prison.
  
  It is hard to know who is more ignorant about technology, or more importantly, the potential of technology.
  
  Is it the record company that wants to get $20 for a CD with maybe 2 or 3 good songs and 7 "fillers"?
  
  Is it the politicians or law makers who listen to the very deep pockets in Hollywood then try to frame legislation to keep them happy?
  
  Or is it the judge who sits in the court quietly wondering WTF a torrent file is?
  
  Justice Cowdroy's enlightened decision is good news, not only for the people who run communications networks, but for the end users who rely on them.
  
  His decision will help to prevent law makers from trying to implement any kind of "content filtering" at the ISP level.
  
  This precedent will prevent record companies or Hollywood from pursuing similar cases, at least in Australia, and allow other judges to quickly deal with similar suits.
  
  It is always worth remembering that legal decisions made in one western country can be raised for consideration in others, even though they are, of course, not binding. Every little bit helps.
  
  By the way, to suggest that the judge was "biased against the USA" is, frankly, infantile.

  5.2.2010 18:59 #14

• Dr_Shifty

  Here in Australia Justice Cowdroy is regarded with respect and widely known to be driven by common sense. He is definitely not a moron, nor does he show any bias against the US.
  
  His decision is very important in respect to the Federal Govt's plans to force internet 'filtering' (censorship) at the ISP level.
  
  Here is the short media statement that was given about his decision.
  http://www.computerworld.com.au/article/..._/?fp=16&fpid=1
  ____________________________________
  
  A summary of the statement provided to journalists on Justice Cowdroy's reasons for finding in iiNet's favour:
  
  "The decision in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the means for infringement but, unlike those decisions, I find the mere provision of access to the Internet is not the means of infringement. There does not appear to be any way to infringe the applicant's copyright from the mere use of the internet. Rather, the means by which the applicant's copying is infringed is in iiNet users' use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system."
  
  "Secondly, I find that as a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to section 101 (1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to section 101 (1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.
  
  "Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.
  
  "Consequently, I find that the applications AMENDED APPLICATION before me must fail."
  _______________________________________

  5.2.2010 21:16 #15

• bluedogs

  Originally posted by slickwill: The judge's bias against the U.S.A is probably what won this court case....LOL
  What an ignorant statement that is.
  
  As an Aussie this is great news and a stance that every country should follow. The only thing that dampens this is the filtering that we are about to get. So they may have won this battle but as we know governments are corrupt so all the government needs to do is add websites to the filter list and they win in a different way.

  5.2.2010 21:21 #16

• Dr_Shifty

  As follow up to this, and perhaps a look into the future regarding ISP legislation here in Oz, check out this report.
  
  http://www.computerworld.com.au/article/..._far_from_over/
  
  Names are of interest here.
  Justice Cowdroy is known for his reasonableness and common sense.
  Stephen Conroy is the Federal Communications Minister and is widely seen as a fool with no internet savvy.

  5.2.2010 21:26 #17

• cyprusrom

  Thanx my Aussie friends, I knew there had to be some trace of common sense left somewhere...
  I am planning on moving there for a year or so with my work late in the fall(haven't picked up a certain place yet, still researching), it sounds more and more like a lovely place:)))

  6.2.2010 00:56 #18

• nyder

  Are you scared of linking sources?
  
  seriously dude, why the edited by ddp do I have to highlight edited by ddp you typed in and google it to find the source?
  
  Why can't you, like every other place that claims to have "news", share your source and links?
  
  Or is it that you just cut & paste your stories from another site and that doesn't include the links?
  
  Seriously, put some source links in your news the submit.

  6.2.2010 05:50 #19

• Dr_Shifty

  Hi nyder,
  I'm going to take a guess here that you were commenting on my previous post. If you meant somebody else, perhaps you could let us both know.
  
  Originally posted by nyder: Are you scared of linking sources?
  No.
  
  Originally posted by nyder: seriously dude, why the edited by ddp do I have to highlight edited by ddp you typed in and google it to find the source?
  I have no idea why you have to do anything.
  
  Originally posted by nyder: Why can't you, like every other place that claims to have "news", share your source and links?
  Source is now shared.
  
  Originally posted by nyder: Or is it that you just cut & paste your stories from another site and that doesn't include the links?
  Got it in one.
  
  Originally posted by nyder: Seriously, put some source links in your news that you submit.
  Your wish is my command.

  6.2.2010 06:52 #20

• bluedogs

  Originally posted by nyder: Are you scared of linking sources?
  
  seriously dude, why the edited by ddp do I have to highlight edited by ddp you typed in and google it to find the source?
  
  Why can't you, like every other place that claims to have "news", share your source and links?
  
  Or is it that you just cut & paste your stories from another site and that doesn't include the links?
  
  Seriously, put some source links in your news that you submit.I think someone needs to take a chill pill. The info he linked to was fine.

  6.2.2010 06:53 #21

• pmshah

  Originally posted by slickwill: The judge's bias against the U.S.A is probably what won this court case....LOLWell how would you want it ? If somebody uses telephone service to make threatening call who will you penalise ? The Telco or the caller? Someone sends an extortion note by mail. Who will you go after? The mail service or the sender?

  6.2.2010 07:49 #22

• xboxdvl2

  Quote:Well how would you want it ? If somebody uses telephone service to make threatening call who will you penalise ? The Telco or the caller? Someone sends an extortion note by mail. Who will you go after? The mail service or the sender? thats a stupid way to look at it you go after the person that made the threats.companys arnt held responsible for people miss using their products if they were every car manufacturing,gun makers and alot of other companys would be in court getting in trouble.if a company makes something or provides a service & some individuals use the product/service for something other than the intended purpose its not the companys fault.
  

  PS2 with 12 games.

  6.2.2010 09:40 #23

• cyprusrom

  Originally posted by xboxdvl2: Quote:Well how would you want it ? If somebody uses telephone service to make threatening call who will you penalise ? The Telco or the caller? Someone sends an extortion note by mail. Who will you go after? The mail service or the sender? thats a stupid way to look at it you go after the person that made the threats.companys arnt held responsible for people miss using their products if they were every car manufacturing,gun makers and alot of other companys would be in court getting in trouble.if a company makes something or provides a service & some individuals use the product/service for something other than the intended purpose its not the companys fault.LOL, I actually think pmshah meant exactly the same thing, he's on the same page...::~))

  6.2.2010 11:05 #24

• xtago

  Quote:Quote:Originally posted by slickwill: The judge's bias against the U.S.A is probably what won this court case....LOL
  ...or probably because there not everyone is brainwashed and with their hands in Hollywood's pockets. Maybe the case was won purely on common sense...If you think that the australian courts are not run by morons, then you don't know anything about them at all. It is just because it is a USA company who pays no taxes to australia, sueing an australian company that does pay taxes to australia.The Australian gov is looking to take over the POTS and ISPs networks.
  
  So if this had gone to the hollywood companies then it'd be the Aust Gov banning people from what they are pandering around as being for everyone and people should vote for them.
  
  The problem that all the Hollywood companies are wanting a cheap way of stopping people without going via a court to get people knocked off the net just because they want people to buy their product.
  
  They brought a US lawyer to Australia to fight this case, who didn't seem to understand the copyright laws, the Australian copyright laws had to be amended so that a Free Trade agreement could be done with the US, other wise it was a no go.
  
  It's not exactly the same as the US copyright law but close and Australia has had to amend it again due to people and companies having problems with those laws.
  
  The hollywood lawyer was saying they breach Australian privacy laws by sniffing packets and then sending out letters to the ISP and then once 3 letters had gone to the ISP that they had to close that connection by force.
  
  Then the ISP had to be forced into giving out ALL the persons details directly to to AFACT just because 3 letters had been sent out about an IP address.
  
  iiNet brought 10 trolley loads of printed out copyright letters, each trolley had over 10,000 letters on them as the hollywood lawyers wanted 1 weeks worth of letter printed out a brought to the court house.
  
  iiNet said they don't bother sending them on as they get around 5,000 emails from AFACT every few seconds, and those trolleys weren't the full weeks amount of letters as iiNet thought that would be enough seeing as it amounted to about $100,000 worth in paper.
  
  The hollywood lawyer is asking network techs about how the internet works and those same techs are explaining to the court about all the stuff AFACT would be doing to get those IPs and their own lawyer just didn't have any idea what was being said him.
  
  He was trying to do the same questions as what RIAA asked the pirate bay but this time asking someone who works in that business every day and deals with a national network and then getting answers about how packets would have to be sniffed to figure out what is being sent and explaining how that would be hacking, breaking privacy laws etc
  
  Then that lawyer is saying no we don't do that I think, and the Sysadmin is saying yeah you'd have to other wise you wouldn't have that info etc
  
  In other word the AFACT hollywood screwed themselves as it shows up the stuff they have to do in order to hand out these letters, and it's all due to AFACt wanting these questions answered to screw the ISP but back fired majorly.
  
  
  Anyway this ISP has safe harbor now, and while AFACT are thinking of appalling this the judge has expanded his end result to cover a lot of stuff so that another case will be harder to start up.

  6.2.2010 14:19 #25

• bluedogs

  Quote:The Australian gov is looking to take over the POTS and ISPs networks.And you got this information from where? Give me a link I wanna read this.

  6.2.2010 20:27 #26

• xboxdvl2

  [quoteQuote:
  --------------------------------------------------------------------------------
  The Australian gov is looking to take over the POTS and ISPs networks.
  --------------------------------------------------------------------------------
  
  And you got this information from where? Give me a link I wanna read this.
  ]I know the government was considering providing an internet service.i think they wanted to start there own cable internet service but that got scrapped 3months ago.
  

  PS2 with 12 games.

  7.2.2010 09:11 #27

• bluedogs

  Originally posted by xboxdvl2: [quoteQuote:
  --------------------------------------------------------------------------------
  The Australian gov is looking to take over the POTS and ISPs networks.
  --------------------------------------------------------------------------------
  
  And you got this information from where? Give me a link I wanna read this.
  ]I know the government was considering providing an internet service.i think they wanted to start there own cable internet service but that got scrapped 3months ago.And the filtering. I can not see the government taking control of the ISP's networks. Way to costly for the purpose. Look at logic Telstra, iiNet, Optus, Internode, iPrimus, Pacnet and more could you imagine the cost of taking over their network plus the other 200 odd companies
  

  Vista HP 64 bit,AMD 9850 x4, 4 Gig Ram,2 x LG DVD Burners, xFx 8800 GTS 640mb, 2x80 and 2 x 120 Gig Hdd SATA, 24" LCD LG Monitor

  7.2.2010 18:47 #28

• xtago

  Quote:Quote:The Australian gov is looking to take over the POTS and ISPs networks.And you got this information from where? Give me a link I wanna read this.I just can't believe, I just read this as a question.
  
  I'll assume your from the US and don't know anything.
  
  Currently the Australian Labour Government has set aside 42 billion AUD to buy out networks and roll out fibire optic cables the POTS network which is what the Telco industry call the telephone network or local loop for another term.
  
  The Australian Government is looking to basicly split up Telstra into a retail and then keep it's network for itself and place it into the company they have set up called NBNco (national Broadband Network)
  
  The plan is to run fiber optic cable out to the local nodes (which is a baby exchange along the road) and then have all telephone and network lines run out via the old POTS network, this will give full ADSL2+ speeds.
  
  Though a lot of people/companies are wanting the Government to go the whole way with Fiber and give higher speeds.
  
  Currently it's still at the starting stage where they are doing tenders etc some work is supposed to be happening now but what that is exactly not sure.

  9.2.2010 04:25 #29

• bluedogs

  Quote:Quote:Quote:The Australian gov is looking to take over the POTS and ISPs networks.And you got this information from where? Give me a link I wanna read this.I just can't believe, I just read this as a question.
  
  I'll assume your from the US and don't know anything.
  
  Currently the Australian Labour Government has set aside 42 billion AUD to buy out networks and roll out fibire optic cables the POTS network which is what the Telco industry call the telephone network or local loop for another term.
  
  The Australian Government is looking to basicly split up Telstra into a retail and then keep it's network for itself and place it into the company they have set up called NBNco (national Broadband Network)
  
  The plan is to run fiber optic cable out to the local nodes (which is a baby exchange along the road) and then have all telephone and network lines run out via the old POTS network, this will give full ADSL2+ speeds.
  
  Though a lot of people/companies are wanting the Government to go the whole way with Fiber and give higher speeds.
  
  Currently it's still at the starting stage where they are doing tenders etc some work is supposed to be happening now but what that is exactly not sure.No Im aussie. I just didn't think of that so called lame roll out you speak of. Are you aware how long that is going to take (retorical question) Australia is so far behind with it Internet compared to some countries its not funny.
  
  Anywho good on the judge bout time sensability came to the front

  9.2.2010 06:49 #30

• forktine

  If it seems that the australians are a bit thick then they ain't alone. the fishing expiditons of the RIAA and extortionate threats against all and sundry in the USA in an attempt for the recording industry to stay in the past. the recent protection-of-links legislation in the UK. the Spanish outlawing of "file-sharing" tools.
  australia is a stock standard jingoistic joint. i were born here over fifty years ago.
  if it seems to some that there is an anti-USA thing going on then that is misconception brought about by the fact that that the main litigants were US businesses too slow to make the move to 2009/2010.
  the case was not enjoined by the US porn film industry because they jumped pretty quickly onto bit-torrent. they reccomend UTorrent to their subscribers because its ease of use is about the level who they clients is.
  to get the IP and ISP data the lawyer may be correct in saying that their side doesn't do that.
  the connect i've got now doesn't allow to torrent, however i used to be addicted to Azureus. azureus can be set to log everything. if you deal with an azureus in a swarm they ain't hackin you... yer tellin them everything they want to know.
  if "hollywood" had got in with the azureus developers early, or if they get in with them now... they'd save a lot of money and cut out a huge proportion of the middleman.
  the Vuze thing ain't my thing but i think it is a great development for its intended purpose.
  the judge, the politicians, the media are generally at the level of peoples who ask me to help with a computer problem. i ask what they are running and they say "Office" or "Word". right, so its MS. what version of "office"?
  One worrying comment, for me, the judge made is that the litigants should maybe go after the software makers. "hollywood" won't be doing that as they techs and in-house legals will come up with fact that Bram Cohen originally designed BT as a legit tool for very large companies. HOWEVER... the politician responsible will look at that because he is fundamentally ignorant of the tech and is in fact a party hack who has his job because we live in a "democracy". before the case was finished he was talkin about other "remedies" the government may have to consider to stop this crime-wave.
  yesterday and today the group known as Anonymous have been DDoS the government off the web because of the "net-filter". this isn't the first such series of attacks but is brought on by the recent announcement that various other categories would be blocked. one of which is women with small breasts which they fear may be a euphemism for children.
  as someone earlier said australia had to extend copyright in order for the then government to get their free trade agreement. there is an element of anti-US in a lot of the population but it is at US capitalism. the song "happy birthday" is 60-70 years old and the author long dead. the song is copyright property of a company not connected to the dead author.
  it isn't the end of this story just a starting skirmish. and in the end we will have more censorship.
  yes. because this is australia.

  11.2.2010 02:48 #31

• Mrwirez

  Good for this Aussie judge.. At least someone can't be bought off. This case was like someone suing Smith & Wesson for an idiot who shoots someone.. I hope other countries take notice!!

  16.2.2010 12:33 #32