iiNet Wins Copyright Case
Judge Cowdroy found almost entirely in iiNet's favour.
SMH Article
Partial Summary of Cowdroy's Decision
Full Judgement (Warning: 200 pages long)
iiNet won, hands down. Judge found that not only were they not authorising copyright breaches but that even if they were they were protected by safe harbour laws.
The judgement being 200 pages long is also discussed, and Cowdroy made it clear that he was taking this very seriously as he knew this was a landmark international case. He's fully explained everything pursuant to the case and I get the feeling that he's spent a fair bit of time reading about what Bittorrent is.
Quotes and Analysis:
In regards to whether ISP users infringing copyright justifies forcing said ISP to take action against them:
From point 19 of the summary: "However, such fact does not necessitate or compel, and can never necessitate or compel, a finding of authorisation, merely because it is felt that ‘something must be done’ to stop the infringements."
More than simply pointing out that iiNet didn't authorise breach of copyright, this also reads like a big 'fuck you' to any attempts to make ISPs accountable for their users.
--
"70: To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map."
This made me laugh. In between all the legalese he threw this in.
--
In regards to the film studios' attempts to paint the iiNet CEO Michael Malone as an unreliable and uncredible witness:
From 134: "Whether Mr Malone’s beliefs in relation to the law and the respondent’s legal obligations were accurate is a distinct matter from whether he provided evidence of that which he honestly believed. Mr Malone may not have been a helpful witness to the applicants’ counsel, but that did not render Mr Malone an unhelpful witness to the Court."
From 135: "Merely because the views expressed by Mr Malone did not accord with the interests of the applicants does not render those views ‘extreme’."
--
The judge made a comment about the applicants' questioning of Malone being "unnecesarily hostile" - lets find out why he said so:
From 140: "Despite being asked, on the Court’s count, no fewer than 30 times in multiple different ways, Mr Malone refused to alter his answer that he did not know how long the Westnet policy had existed for, only that he knew that it existed from September 2008 when he was first made aware of it." (emphasis mine)
I could add many more, but Malone has 34 points about his evidence, in all of which Cowdroy must point out individually why he was accused of being dishonest and how he was not. Just about every single point.
--
In regards to iiNet's Repeat Infringer Policy:
From 156: "Yet the cross-examination of Mr Malone on the issue proceeded essentially upon the basis that there could only be one type of repeat infringer policy, being the policy sought by the applicants (warning and termination). The applicants submitted that because Mr Malone did not have this policy, and because there was no written policy, he was misleading the Court concerning the existence of any policy."
This is something the Judge brought up several times before and after this. AFACT was so convinced it was right and that everything different to what they believed was wrong, damn the law. The Judge is (rightly) critical of this approach and mentions that this approach seriously damaged their argument as they proceeded as though they had won every argument (e.g. that they had indisuptably proved Malone to be uncredible).
--
From 170: "Ms Moonen’s (the respondent’s compliance officer) subsequent email to Detective Sergeant Taylor of the Western Australian Police Force on 21 November 2008 which stated:
Hey Duncan,
We’d like to report the client who “posed” as an iiNet customer, downloaded a whole pile of content, and then is now suing us as he was able to infringe copyright.
Is there any way I could call in a personal favor [sic] and have that individual prosecuted? Today?
:)
The Court believes that the ‘:)’ following the email indicated that it was not intended to be to be taken seriously."
The Judge understands how internet humour is demarcated!
--
From 189: "An inference arises from the above exchanges that the only non-infringing material available for download is that on the Freezone, the corollary being that downloads other than by way of Freezone must be of copyright infringing material. "
Oh wow. I think I vaguely remember this popping up whilst following this during the trial but it still strikes me as incredibly stupid. Fortunately, the Judge points out that this is wrong.
--
Points 243 and 244 (I'm not going to quote them as they're bloody long) make the case from the Judge's POV that although a great deal of Bittorrent traffic might be copyright infringing (though he previously mentioned there is no way to know this as available data is not so comprehensive) there is no proof that the applicants' material makes up the majority of this material and as such invalidates their claim that downloading is the same as infringing. An interesting conclusion.
--
"265: The respondent virtually conceded that proof of primary infringements would be made out by the applicants but argued that it is essential that the Court identify those primary infringements in respect of which the applicants have led evidence. The Court agrees."
The idea that the person who did the infringing is liable and not the connection/computer itself has long been a defence against such crap as the 'Three Strikes Law' and now it appears to have been tested and found to be right.
--
From 301 to 318 Justice Cowdroy finds himself in the uneviable position of having to determine how P2P copyright infringement works under an act that doesn't reflect the fact that it exists (being made before P2P became popular). It's pretty dense and technical, but Cowdroy does a pretty good job at defining it - he follows the spirit of the law rather than the exact wording and fully explains why he made the definition and how it fits.
--
In regards to whether AFACT agents had infringed copyright in downloading movies for the investigation:
From 335: "If funding was provided in order to gather evidence for the purposes of a proceeding or for other reasons, that is evidence that there was permission or consent for Mr Herps and Mr Fraser to do copyright acts. One cannot give permission for one’s copyrights to be infringed; the very granting of permission vitiates the infringement, because the infringement is predicated on the absence of permission."
I like that. It's also amusing because the Judge actually went against AFACT witnesses on this count - if he had followed their line then the agents would have been breaching copyright. Even more amusing is that AFACT believed this mattered greatly to their case (i.e. the agents needed to be found to be infringing) yet in 344 the Judge dismisses it as of no real consequence.
--
From 400: "As discussed earlier, a photocopier can be used to infringe copyright, but on the reasoning of Gibbs J and Jacobs J, the mere provision of a photocopier was not the ‘means’ of infringement in the abstract. Rather, it was only the ‘means’ of infringement in the particular context of the library, where it was surrounded by copyright works. Other preconditions existed, namely the supply of power and the physical premises in which the infringements occurred. The presence of each of these factors was a necessary precondition for the infringements to occur, but that does not inexorably lead to the conclusion that a person who individually provided each one of those preconditions could equally be found to have authorised the infringements." (emphasis mine)
Legal comparison between the provision of Internet access and electricity. That's another one of the old tenets against 'Three Strikes' laws being implemented validated by the court.
--
"403: The infringing iiNet users must seek out a BitTorrent client and must seek out .torrent files related to infringing material themselves. In doing so, they are provided with no assistance from the respondent. The respondent cannot monitor them doing so or prevent them from doing so."
This will form the basis of AFACT's appeal, methinks. They commented that the decision seemed to be a technical one based on Bittorrent and this is the likely method they will use. They will argue that an ISP can prevent them by blocking P2P protocol traffic or blocking bittorrent websites. Whether this will let them win the appeal is another matter, but I'm certain this will be central to their appeal.
Fortunately, Cowdroy opposes this sort of action:
"406: In making such finding the Court does not wish to imply that the BitTorrent system is necessarily copyright infringing, nor that the BitTorrent system itself is illegal."
SMH Article
Partial Summary of Cowdroy's Decision
Full Judgement (Warning: 200 pages long)
iiNet won, hands down. Judge found that not only were they not authorising copyright breaches but that even if they were they were protected by safe harbour laws.
The judgement being 200 pages long is also discussed, and Cowdroy made it clear that he was taking this very seriously as he knew this was a landmark international case. He's fully explained everything pursuant to the case and I get the feeling that he's spent a fair bit of time reading about what Bittorrent is.
Quotes and Analysis:
In regards to whether ISP users infringing copyright justifies forcing said ISP to take action against them:
From point 19 of the summary: "However, such fact does not necessitate or compel, and can never necessitate or compel, a finding of authorisation, merely because it is felt that ‘something must be done’ to stop the infringements."
More than simply pointing out that iiNet didn't authorise breach of copyright, this also reads like a big 'fuck you' to any attempts to make ISPs accountable for their users.
--
"70: To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map."
This made me laugh. In between all the legalese he threw this in.
--
In regards to the film studios' attempts to paint the iiNet CEO Michael Malone as an unreliable and uncredible witness:
From 134: "Whether Mr Malone’s beliefs in relation to the law and the respondent’s legal obligations were accurate is a distinct matter from whether he provided evidence of that which he honestly believed. Mr Malone may not have been a helpful witness to the applicants’ counsel, but that did not render Mr Malone an unhelpful witness to the Court."
From 135: "Merely because the views expressed by Mr Malone did not accord with the interests of the applicants does not render those views ‘extreme’."
--
The judge made a comment about the applicants' questioning of Malone being "unnecesarily hostile" - lets find out why he said so:
From 140: "Despite being asked, on the Court’s count, no fewer than 30 times in multiple different ways, Mr Malone refused to alter his answer that he did not know how long the Westnet policy had existed for, only that he knew that it existed from September 2008 when he was first made aware of it." (emphasis mine)
I could add many more, but Malone has 34 points about his evidence, in all of which Cowdroy must point out individually why he was accused of being dishonest and how he was not. Just about every single point.
--
In regards to iiNet's Repeat Infringer Policy:
From 156: "Yet the cross-examination of Mr Malone on the issue proceeded essentially upon the basis that there could only be one type of repeat infringer policy, being the policy sought by the applicants (warning and termination). The applicants submitted that because Mr Malone did not have this policy, and because there was no written policy, he was misleading the Court concerning the existence of any policy."
This is something the Judge brought up several times before and after this. AFACT was so convinced it was right and that everything different to what they believed was wrong, damn the law. The Judge is (rightly) critical of this approach and mentions that this approach seriously damaged their argument as they proceeded as though they had won every argument (e.g. that they had indisuptably proved Malone to be uncredible).
--
From 170: "Ms Moonen’s (the respondent’s compliance officer) subsequent email to Detective Sergeant Taylor of the Western Australian Police Force on 21 November 2008 which stated:
Hey Duncan,
We’d like to report the client who “posed” as an iiNet customer, downloaded a whole pile of content, and then is now suing us as he was able to infringe copyright.
Is there any way I could call in a personal favor [sic] and have that individual prosecuted? Today?
:)
The Court believes that the ‘:)’ following the email indicated that it was not intended to be to be taken seriously."
The Judge understands how internet humour is demarcated!
--
From 189: "An inference arises from the above exchanges that the only non-infringing material available for download is that on the Freezone, the corollary being that downloads other than by way of Freezone must be of copyright infringing material. "
Oh wow. I think I vaguely remember this popping up whilst following this during the trial but it still strikes me as incredibly stupid. Fortunately, the Judge points out that this is wrong.
--
Points 243 and 244 (I'm not going to quote them as they're bloody long) make the case from the Judge's POV that although a great deal of Bittorrent traffic might be copyright infringing (though he previously mentioned there is no way to know this as available data is not so comprehensive) there is no proof that the applicants' material makes up the majority of this material and as such invalidates their claim that downloading is the same as infringing. An interesting conclusion.
--
"265: The respondent virtually conceded that proof of primary infringements would be made out by the applicants but argued that it is essential that the Court identify those primary infringements in respect of which the applicants have led evidence. The Court agrees."
The idea that the person who did the infringing is liable and not the connection/computer itself has long been a defence against such crap as the 'Three Strikes Law' and now it appears to have been tested and found to be right.
--
From 301 to 318 Justice Cowdroy finds himself in the uneviable position of having to determine how P2P copyright infringement works under an act that doesn't reflect the fact that it exists (being made before P2P became popular). It's pretty dense and technical, but Cowdroy does a pretty good job at defining it - he follows the spirit of the law rather than the exact wording and fully explains why he made the definition and how it fits.
--
In regards to whether AFACT agents had infringed copyright in downloading movies for the investigation:
From 335: "If funding was provided in order to gather evidence for the purposes of a proceeding or for other reasons, that is evidence that there was permission or consent for Mr Herps and Mr Fraser to do copyright acts. One cannot give permission for one’s copyrights to be infringed; the very granting of permission vitiates the infringement, because the infringement is predicated on the absence of permission."
I like that. It's also amusing because the Judge actually went against AFACT witnesses on this count - if he had followed their line then the agents would have been breaching copyright. Even more amusing is that AFACT believed this mattered greatly to their case (i.e. the agents needed to be found to be infringing) yet in 344 the Judge dismisses it as of no real consequence.
--
From 400: "As discussed earlier, a photocopier can be used to infringe copyright, but on the reasoning of Gibbs J and Jacobs J, the mere provision of a photocopier was not the ‘means’ of infringement in the abstract. Rather, it was only the ‘means’ of infringement in the particular context of the library, where it was surrounded by copyright works. Other preconditions existed, namely the supply of power and the physical premises in which the infringements occurred. The presence of each of these factors was a necessary precondition for the infringements to occur, but that does not inexorably lead to the conclusion that a person who individually provided each one of those preconditions could equally be found to have authorised the infringements." (emphasis mine)
Legal comparison between the provision of Internet access and electricity. That's another one of the old tenets against 'Three Strikes' laws being implemented validated by the court.
--
"403: The infringing iiNet users must seek out a BitTorrent client and must seek out .torrent files related to infringing material themselves. In doing so, they are provided with no assistance from the respondent. The respondent cannot monitor them doing so or prevent them from doing so."
This will form the basis of AFACT's appeal, methinks. They commented that the decision seemed to be a technical one based on Bittorrent and this is the likely method they will use. They will argue that an ISP can prevent them by blocking P2P protocol traffic or blocking bittorrent websites. Whether this will let them win the appeal is another matter, but I'm certain this will be central to their appeal.
Fortunately, Cowdroy opposes this sort of action:
"406: In making such finding the Court does not wish to imply that the BitTorrent system is necessarily copyright infringing, nor that the BitTorrent system itself is illegal."