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AFACT vs iiNet (and convincing Australia’s teenagers they’re pirates)

pacright

As most people in Australia would now be aware, one of the most important developments in terms of civil rights and the Australian internet has now gone before the courts as a consortium, led by the Australian Federation Against Copyright Theft (AFACT) is suing ISP iiNet for refusing to cut off customers for alleged (not proven!) copyright infringement in terms of bittorent media downloads. From the Age:

The Australian film and television industry has launched a major legal action against one of Australia’s largest internet service providers for allegedly allowing its users to download pirated movies and TV shows. The action against iiNet was filed in the Federal Court today by Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney and the Seven Network. Mark White, iiNet’s chief operating officer, said the company did not support piracy in any form but it could not disconnect customers just because the movie industry claimed they engaged in illegal downloading. Adrianne Pecotic, executive director of the Australian Federation Against Copyright Theft (AFACT), said the action followed a five-month investigation by the industry.

There are also arguments made that peer to peer networks should simply be blocked (although that argument hasn’t been in quit those terms just yet in this case) but that serves as a good opportunity to remember that p2p and, yes, even bittorent, are not intrinsically for distribution of ‘pirated’ media; there are plenty of things, including feature films, being distributed via peer to peer networks which are entirely legal!

One thing this case should, hopefully, achieve, is to test the extent to which recently imported ‘safe harbour’ provisions actually stand up in an Australian court:

"This is a very important test case for the internet industry in Australia," said Peter Coroneos, chief executive of the Internet Industry Association. "It will test the effect of the safe harbour provisions that were introduced with the US free trade agreement, which provides immunity for ISPs in certain circumstances such as transmission, hosting, caching and referencing activities."

However, as this article from Michael Sainsbury and Fran Foo in Australian IT notes, the lawsuit seems to stand on pretty thin legal grounds (disclaimer: I ain’t no lawyer!):

iiNet managing director Michael Malone said when it received AFACT’s complaints, they were forwarded to the Police. "But AFACT refused to talk to the Police," Mr Malone said. Ms Pecotic brushed aside Mr Malone’s explanation, saying: "The law is clear and iiNet knows that. They cannot pass the buck … it is their responsibility." "There were many things that iiNet could have done and at the very least, issue a warning to the customers involved but they did nothing," she said. Unlike a number of other major jurisdictions such as the United States and Britain, Australia does not have blanket agreement between content companies and broadband providers about file swapping. An Optus spokesperson said that under Australian law there are remedies available to copyright holders, including taking action directly against those alleged to be infringing rights. "It is unfortunate that the rights holders are targeting an ISP because under Australian law, internet service providers may generally be considered conduits which provide carriage services, and as such are not responsible for copyright infringements carried out by customers using their internet services,” the spokesperson said. This position is reflected in sections 39 (B) and 112 (E) of the Copyright Act 1968 (Com), and in the safe harbours set out in Division 2AA, which were introduced protect ISPs from being onerously required to enforce intellectual property rights where they are merely providing carriage services.

On the smaller screen front, TV Tonight notes that Channel 7 is part of the group attacking iiNet, although reading the comments on the TV Tonight post, this action seems to have focused even more people’s feeling that they are downloading television shows because local networks simply aren’t providing the goods in a timely or consistent fashion!

iiNet’s own response seems the most sensible part of this whole debacle:

iiNet’s Managing Director Michael Malone said iiNet does not in any way support or encourage breaches of the law, including infringement of copyright. “In reality, iiNet has been leading the industry in making content available legally through our Media Lounge, including agreements with iTunes, ABC iView, the West Australian Symphony Orchestra, Cruizin’, Macquarie Digital TV, NASA Television, Barclays Premier League football, Drift Racing 2007 and classic highlights of golf’s four Majors,” Mr Malone said. Mr Malone said iiNet had not breached any laws and had repeatedly passed on copyright holders’ complaints to law enforcement agencies for investigation. He said iiNet had advised the Australian Federation Against Copyright Theft (AFACT) that their complaints had been forwarded to law enforcement agencies and that they should follow the matter up with them. iiNet’s Customer Relations Agreement clearly spells out that customers must comply with the law and that our service must not be used “to commit an offence or to infringe another person’s rights”. “iiNet cannot disconnect a customer’s phone line based on an allegation. The alleged offence needs to be pursued by the police and proven in courts. iiNet would then be able to disconnect the service as it had been proven that the customer had breached our Customer Relations Agreement,” Mr Malone said.

Relying on the idea that customers are innocent until proven guilty?  Whatever is iiNet thinking?

At the same time this lawsuit was announced, AFACT released the following ‘resource’ – Nothing beats the real thing! How copyright, creativity and citizenship shape our society (subtitle: Film Piracy – Your Actions Can Make a Difference) – which has been mailed on DVD and hardcopy to every secondary school in Australia. The ‘resource’ is structured around addressing film piracy; the ‘civics lessons’ here are, at best, tailored to a very specific commercial aim and, at worst, an advertising campaign trying to make relevant copyright laws which have long since been dismissed as out of touch by the most teenagers.  More to the point, a genuine civics lesson on copyright would spend considerable time discussing fair dealing, the public domain and the Creative Commons (and other copyleft licenses) as a channel for personal and political creativity and expression (to be fair, both of these things are mentioned in the ‘resource’, but a single paragraph hardly does the Creative Commons justice, especially when it spend half the time emphasising that CC licenses are complex: “There are lots of different types of ‘Creative Commons’ licences, so make sure you always read the terms and conditions of these before applying them to your work or using material licensed under such a licence.”). How central is film piracy to these civics lessons?  The lesson structure:

afact

Is the ‘resource’ balanced?  I’ll leave you take a look for yourself (6Mb PDF), but I’ve never read an educational resource before which feels the need to include this disclaimer (p. 4.):

The resource is not a propaganda exercise. It does make clear to students that there are harmful consequences from film piracy, but it does so through educationally valid processes. It is an educational approach that allows students to face a significant civics and citizenship issue: their role in a society where many of them and their peers are breaking the law.

All I can say is I’d be really, really disappointed if this was the only resource secondary school teachers were provided when integrating lessons which combine copyright, creativity and civics in the classroom.

[Photo: ‘ars electronica linz 2008’ by Mike from Zurich CC BY (Edited)]

Update: Kim Weatherall has a detailed legal (and possibly more balanced) look at the case here. [Via Peter Black]

Update 2: After writing the EFA response, Nic Suzor has a very robust look at the case on his blog, too.

Annotated Links of Interest: October 23rd 2008

Links of interest for October 22nd 2008 through October 23rd 2008:

  • Playing Columbine: An Interview with Game Designer and Filmmaker Danny Ledonne (Part One) [Confessions of an Aca/Fan] – A fascinating interview with the man behind the very controversial ‘serious game’ Super Columbine Massacre RPG! which sought to deconstruct the tragedy and the way it was reported by simulating the experience. (See also Part II of this interview, Part III, and the game at the centre of the discussion, Super Columbine Massacre RPG!)
  • Online Streaming Adds Millions of Viewers for ‘Heroes,’ ‘The Office’ [TV Decoder Blog – NYTimes.com] – “How many consumers stream TV episodes on the Internet? How many download the episodes on iTunes? How many watch the episodes using video on demand? How many view the episodes on mobile phones? NBC is trying to tell by adding together all the exposure of its episodes on five platforms in a rubric they call the TAMi, short for “Total Audience Measure index.” The TAMi was first used for the Olympics and is now being released on a weekly basis for NBC’s prime time shows.” (the TAMi seems like a very clear admission that Neilsen ratings and similar eyeballs on tv screen measures are simply out of date!)
  • Sickie faker busted by Facebook [The Age] – “A Sydney telco employee has learned the hard way the perils of sharing too much information on Facebook after he was caught by his boss faking a sickie after a big night out. The manager then sent Doyle a screen grab of Doyle’s Facebook profile, highlighting a status update written on the leave day in question. […] “Kyle Doyle is not going to work, f— it i’m still trashed. SICKIE WOO!,” it read. Sprung and with no room left to move, Doyle replied to the boss: “HAHAHA LMAO [laughing my ass off] epic fail. No worries man.” In an email exchange doing the rounds of office blocks, Kyle Doyle was asked by his employer, AAPT, to provide a medical certificate verifying a day of sick leave in August.”
  • Backlash over Microsoft’s anti-piracy tactics [The Age] – “Chinese internet users have expressed fury at Microsoft’s launch of an anti-piracy tool targeting Chinese computer users to ensure they buy genuine software. The “Windows Genuine Advantage” program, which turns the user’s screen black if the installed software fails a validation test, is Microsoft’s latest weapon in its war on piracy in China, where the vast majority of 200 million computer users are believed to be using counterfeit software, unwittingly or not. “Why is Microsoft automatically connected with my computer? The computer is mine!” one angry blogger wrote on popular Chinese web portal Sina.com. “Microsoft has no right to control my hardware without my agreement.” Another blogger railed over the cost of authorised versions. “If the price of genuine software was lower than the fake one, who would buy the fake one?” he wrote.”
  • Dutch teens convicted of virtual theft [The Age] – “A Dutch court has convicted two teenagers of theft for stealing virtual items in a computer game and sentenced them to community service. Radio Netherlands reports that the two teenagers – a 15 and a 14-year-old – were found guilty of using violence to rob a 13-year-old classmate of virtual property in the multiplayer online game RuneScape.”
  • Hell hath no fury like the ‘ex’ files [The Age] – “It was the wedding present from hell. In the middle of his Pacific island honeymoon, a Melbourne finance executive discovered that a woman claiming to be his ex had branded him in cyberspace as a dud lover and serial cheat. Along with his name and picture, the anonymous “ex” posted his mobile phone number, address and car registration on the “love rat” site dontdatehimgirl.com. … The executive is one of more than 200 Australian men whose profiles have been posted on dontdatehimgirl.com or datingpsychos.com — US sites now being used by Australian women to post anonymous rants against men who have supposedly done them wrong, and to warn other prospective partners. Other women — also anonymous — then add “comments” which may include their own experiences of the same man. Men named — and often also pictured — in the profiles may deny the accusations.” (What happens when citizen justice decends into the digital lynchmob!)
  • Obama in-game advertising [The LAMP Watercooler] – “The Obama campaign has made strong use of the internet for fundraising, organising and spreading the message. The campaign has gone to a new level with the release of in-game advertising as illustrated in this screen-shot published on Gigaom recently.”
  • Digital switch timetable [TV Tonight] – “[Australian] Senator Conroy has mapped out the switch from analog to digital television …” Perth will have to switch to entirely digital television broadcast by January – June 2013; regional WA by the end of 2013. Follow the link for the timeline for the rest of Australia.
  • Giant database plan ‘Orwellian’ [BBC NEWS | Politics] – “Proposals for a central database of all mobile phone and internet traffic have been condemned as “Orwellian”. Home Secretary Jacqui Smith said the police and security services needed new powers to keep up with technology. Details of the times, dates, duration and locations of mobile phone calls, numbers called, website visited and addresses e-mailed are already stored by telecoms companies for 12 months under a voluntary agreement. The data can be accessed by the police and security services on request – but the government plans to take control of the process in order to comply with an EU directive and make it easier for investigators to do their job.” (Apparently you’ll need a passport to buy a mobile phone in the UK, too.)

Annotated Links of Interest: October 13th 2008

Links of interest for October 13th 2008:

  • Video games and music | Playing along [The Economist] – “As the music industry searches for a new model in the age of digital distribution and internet piracy, it is getting a helping hand from an unexpected quarter: video games such as “Guitar Hero” and “Rock Band”, which let people play along to songs on simplified imitation instruments. “These games are revitalising the industry,” says Aram Sinnreich, an industry expert at New York University. “They’re helping as both a revenue and an advertising platform. … Established artists are also using the games to promote their music. Bobby Kotick, Activision’s boss, says Aerosmith have made more money from “Guitar Hero: Aerosmith”, a version of the video-game that features the band, than from any of their albums.” [Via Terry Flew]
  • Mainstream News Outlets Start Linking to Other Sites [NYTimes.com] – ” “Thou shalt not link to outside sites” — a long-held commandment of many newsrooms — is eroding. Embracing the hyperlink ethos of the Web to a degree not seen before, news organizations are becoming more comfortable linking to competitors — acting in effect like aggregators.”
  • AC/DC Electrify BitTorrent Album Downloads [TorrentFreak] – “AC/DC will release its new album ‘Black Ice’ worldwide on October 20th, in physical format only since the band doesn’t sell its music online. However, the upcoming album has already been digitized by pirates, as it leaked to BitTorrent five days ago. In that time it has taken the trackers by storm, racking up a staggering 400,000 downloads.”

Annotated Links of Interest: October 2nd 2008

Links of interest for October 1st 2008 through October 2nd 2008:

  • Google Search 2001 – To celebrate Google’s 10th birthday they’ve gone back in time and worked with the Internet Archive to let you search the 2001 web … YouTube is a nonsense word, ‘blog’ only returns 76,400 hits and Facebook has just under 1800 results!
  • EA Downplays Spore’s DRM Triggered Piracy Record [TorrentFreak] – Despite credible estimates that Spore has been downloaded over a million times via bittorrent networks, EA are playing down these figures and, in a turnabout for a big media producer, are arguing that not every download would have represented a legitimate sale were bittorrent not around (something many downloaders have been arguing about p2p film and even tv for years). Despite EA’s PR spin, it seems likely DRM is one of the big things nudging fans into downloading the Spore (and bypassing the DRM altogether).
  • Blizzard wins Warcraft bot payout [BBC NEWS | Technology] – “World of Warcraft creator Blizzard has won $6m (£3.36m) in damages from the makers of a software ‘bot’. The damages award comes after Blizzard won the first round of its legal battle against MDY Industries in July 2008. Blizzard embarked on the case against MDY claiming that the World of Warcraft Glider software produced by the small company infringed its copyright. The Glider software lets Warcraft players automate many of the repetitive steps the game involves. … it helped them automate the many repetitive tasks, such as killing monsters and scavenging loot, required to turn low level characters into more powerful ones.”

Annotated Links of Interest: September 10th 2008

Links of interest for September 9th 2008 through September 10th 2008:

  • Pirates become canon keepers [The Australian] – “Some commentators have suggested that it’s simply easier for studios to replace the entire score than to investigate music rights. In any case, an unannounced modern alteration is cultural vandalism, even if you don’t think the original work was any good. As a result the DVD is useless as a piece of cultural history and as a representation of an original work. With the internet full of sellers (often fans themselves) willing to provide the copies of this and other series taken from unedited broadcasts, the studio has taken a huge step towards legitimising piracy as a means of cultural preservation.” (A fantastic, if rather sarcastic, article by Kit MacFarlane arguing that piracy may be the only course open to preserve tv texts in the face of minor – and major – alterations made by studios and distributors on the way to dvd releases and more. )
  • BATTLESTAR GALACTICA returns to iTunes…in HD [GALACTICA SITREP] – Battlestar Galactica and other NBC shows return to iTunes (US). If you’re logged into the US store right now you can get 4×03 (He That Believeth in Me) in HD for free (logged in to the US store, I say, not necessarily in the US!).
  • Australia rated foot of developed world on school funding [PerthNow] – “Australia’s government spending on public education is the second lowest among developed nations, a new report has found. Turkey, Portugal, Mexico and Iceland all spend more money on public education institutions than Australia. … Federal Education Minister Julia Gillard says the new OECD Education at a Glance report highlights the need for the Rudd Government’s much-hyped “education revolution”.” (Yes, but WHEN is this much-vaunted education revolution actually going to start? It’s close to unforgivable that the once ‘clever country’ is so far behind in global terms.)
  • Google Turns 20 (fiction) – “This month, September 2018, marks the 20th anniversary of Google as a business…” A provocative little piece of speculation fiction looking back from 2018 at the rise, and fall, of Google. A few ideas are a bit far-fetched (Windows Free?) but most are plausible; all beg interesting questions about current trends, from software design, to monopolistic practices, to (really) participatory culture!
  • John McCain Gets BarackRoll’d [YouTube] – John McCain gets rickrolled by the all-singing, all-dancing Barack Obama show! LMAO!

Links for August 28th 2008

Interesting links for August 27th 2008 through August 28th 2008:

  • Blogger arrested over Guns N’ Roses leak [The Age] – “A blogger suspected of streaming songs from the unreleased Guns N’ Roses album Chinese Democracy on his website was arrested and appeared in court, where his bail was set at $US10,000. FBI agents arrested 27-year-old Kevin Cogill on Wednesday morning on suspicion of violating federal copyright laws. Cogill appeared in court in the afternoon wearing a T-shirt; his girlfriend sat in court and afterward said, “Rally the troops”, but declined further comment. Federal authorities say Cogill posted nine unreleased Guns N’ Roses songs on his website in June. The songs were later removed.” (So, a hardcore fan shares some unreleased songs. Solution: send an email and ask him to remove then, he gets a kick from hearing from the band, and happily respects their wishes? Or try and get him locked up and fined? Does no one remember what happened when Metallica shat all over anyone using Napster?) [Via Anna @ iGenMasters]
  • Age editor sacked after Fairfax cuts [ABC News (Australian Broadcasting Corporation)] – “The editor-in-chief of Melbourne’s Age Newspaper is the first casualty of Fairfax media’s job cuts. Andrew Jaspan, has been sacked as part of an overhaul by the newspaper’s owner, Fairfax. His abrupt departure comes a day after the media firm announced it was cutting 550 jobs in Australia and New Zealand. “
  • Woolies’ new card will trail shoppers [The Age] – “An unprecedented mountain of data will be amassed by the nation’s leading retail company with the launch of a sophisticated credit card that can follow shoppers on their spending trails and be used to entice them to buy more products. Woolworths’ Everyday Money Credit Card is the first in the country to combine a credit card with a sophisticated loyalty program capable of capturing and then sending a shopper’s purchasing details back to a central database. The database is linked to the company’s recently launched fuel voucher card.”

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