By Nic Suzor

This week I was interviewed by Phil Dobbie for ZDNet's Twisted Wire program. Also interviewed were Peter Coroneos from the Internet Industry Association and Adrianne Pecotic from AFACT. You can listen to the podcast (direct link (mp3)).

One thing I found disturbing about this interview was AFACT's suggestion that the law was clear and that iiNet had a clear responsibility to monitor its subscribers' internet use and disconnect users who infringe. This is obviously a contested issue, and the law certainly is not clear. The particular requirement of the Safe Harbours are largely untested - both here and in the US - and particularly against ISPs. We have mostly assumed that ISPs were more like common carriers than the P2P networks that have been found responsible for secondary copyright infringement. The iiNet case challenges that assumption, but it is misleading to argue that the law is clear in any meaningful way.

1 comment

  1. This case is very interesting and as you have mentioned the law is not clear in either direction. What I think has not been discussed or addressed is the reasons behind AFACT's approach to this case and the desired protectionist outcome that will be available to a Film industries dying business model.

    AFACT did not attempt to try this case with Pigbond or any other sizable ISP player due to what can only be assumed as an attempt to set a precedent (example) where they had a good chance of muscling their some what dubious claims on to an ISP that does not have the financial clout to fight back over an extended period.

    As to the rights issue.. they know as well as anyone else does that it is "their" duty as right holders and content distributors to protect their content and to "evolve" where required to ensure the rights of their content is not violated and to do so in a court of law if and where required.

    The most interesting comment during the current case to me is AFACT's response to iinet defense that yes they where notified by AFACT of the "presumed" violations of rights and where tolds by AFACT to take appropriate action? when iinet asked AFACT what is appropriate action? AFACT responded and still does.. it is not for us to tell you what action to take! (case dismissed you would think) but no this just means AFACT wants the legal obligation of the action to protect their rights placed at the door step of the ISP as it toke the action not them.

    Attempting to enforce this duty (and cost) on to the providers of a conduit service is a bit like saying a freight company is liable for damages caused by an explosion.. because someone may have used them to deliver part of a bomb that destroyed property. It is at the very least a little back handed and smacks of protectionism in the face of a changing market place.

    If iinet where to lose this may open a gate that would see the end of the standard neutral ISP and thus maybe end up stifling other existing business sectors (including the film industry) as ISP's are then forced to become not only broadcasters and owners of content, but also to become protectionist in nature themselves.

    Thus taking further market share (as seen with Telstra) in other business areas that are not conventionally theirs, buy lets say asking for a fee from each website (domain) to be shown on their network or monitoring all e-commerce gateways and managed payment services thus increasing the cost of online transactions for all business on their network (or becoming one them selves)..

    Think I am talking over the top .. take Hulu in the US where the TV industry toke an old comercial model and applied it to the web, you can only see Hulu on some ISP's .. and if you arn't on that ISP you dont get to see the FTA content, further to this the ISP's "pay" the network for the right to broadcast the content thus grab more customers (old broken model for a new medium) ISP's thus act as TV channels rather than conduit providers, not by choice but by necessity so will start in on advertising.. so on and so on.

    Comment by Dartanian22 on 28 August 2009 at 21:41