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Friday, 25 February 2011 10:34

Going for the wrong jugular - what was wrong with the AFACT case

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Both iiNet CEO Michael Malone and AFACT Executive Director Neil Gane summed the trial and appeal perfectly in two short quotes.  Both demonstrate that AFACT was chasing the wrong target.

As reported earlier by iTWire, iiNet was able to successfully fend off the AFACT appeal against the earlier ruling in the argument over whether iiNet should actively police the copyright violations of its customers.

Admittedly only by a 2:1 majority decision.  However this layman's reading of the dissenting judge's comments don't seem to make an awful lot of sense.  But then, IANAL!

Neil Gane, executive director of AFACT, was quoted in our earlier article as saying, the majority decision of the Federal Court suggested that; "ISPs don't have to lift a finger," to prevent copyright theft taking place via their networks.

Mr. Gane, respectfully, that is exactly the point.  They don't.

Allow me to posit an equivalent situation.

I have a copy of the latest Dan Brown thriller (to take an author at random) which I read down the telephone to an 'accomplice' who types up an exact copy of the book on his computer.  This copy is then printed numerous times and distributed widely without any payment to the copyright owner.

Clearly this is a case of copyright infringement and is (as far as I can tell) identical in substance to the movie violations which were at the core of the legal action.

AFACT would argue that my telephone service should be cancelled.


According to the entire thrust of the AFACT action, my telephony provider should be required to detect this event and deny me service due to this action (with the possibility of the weird 'three strikes' rule coming into play).

This is patently absurd.  How can the carriage provider be liable for the actions of its users?  Is the electricity provider liable for the energy used in hydroponic drug farms?  Is the local council liable if I drive those drugs in my car on suburban roads?

The 'battle' is between the copyright owners and the copyright infringers, but the owners have no desire to tackle the infringers one-by-one, so they look for an easier target with deeper pockets - one who could be seen to 'control' a large group of infringers.

The problem was, they lost the bet - twice now.  The courts have ruled that indeed the ISPs do not 'control' the infringers and at no time authorised their infringing actions.

I leave it to iiNet CEO Michael Malone to provide the final book-end.

"Let's find a middle way. This has wasted two years and hasn't fixed anything," said Mr Malone who said that copying had continued unabated while the court case continued.

So, not only did AFACT choose the wrong target, but by doing so, it effectively diverted resources from more effective strategies. 

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David Heath

David Heath has had a long and varied career in the IT industry having worked as a Pre-sales Network Engineer (remember Novell NetWare?), General Manager of IT&T for the TV Shopping Network, as a Technical manager in the Biometrics industry, and as a Technical Trainer and Instructional Designer in the industrial control sector. In all aspects, security has been a driving focus. Throughout his career, David has sought to inform and educate people and has done that through his writings and in more formal educational environments.

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