Taking on The Man - BitTorrent fight heats up

Nathan Taylor | Dec 3, 2008 6:56 PM

My guess is that iiNet is worried about a slippery slope – it’s only one step from passing on legal warnings to being forced to cut users off at the demands of copyright holders, says Nathan Taylor.

Although the story is a little dated now, a recent comment on ZDNet inspired me to throw my 2c into the ring on the Australian Federation Against Copyright Theft (AFACT) vs iiNet case.

The case was launched on the 20th of November by AFACT, acting on behalf of Village Roadshow, Universal Pictures, Warner Bros, Paramount, Sony Pictures, Twentieth Century Fox, Disney and the Seven Network.

The short version is that agents working for AFACT have been monitoring BitTorrent and other peer-to-peer transactions, harvesting IP addresses of users on those networks. They can track dynamic IP addresses back to ISPs, but not to particular users. Only the ISP knows which user had a given IP address at a specific time, and they tend not to be willing to give up those details without a court order.

So instead of going through that process, AFACT just sends ISPs the list of allegedly guilty IP addresses along with legal letters to be passed onto those individuals. Eventually, it would like to see individual users who are “repeat offenders” cut off from Internet access. Of course, it would like to do this without the messy and expensive business of having to go to court and prove its case against specific users.

But iiNet refused to play ball. Instead of passing on the legal letters to users, it forwarded AFACTs allegations to law enforcement to deal with. Of course, the police haven’t exactly been enthusiastic about chasing this up. So AFACT is suing iiNet, saying it “authorised” illegal file sharing by not acting against it.

I think iiNet is almost completely in the right here. I think AFACT would love to set itself up as judge, jury and executioner but the fact is that it’s a private organisation without any extra legal rights beyond that. iiNet’s position – and it’s the right one I believe – is that people are presumed innocent until proven guilty in a court of law. Therefore, iiNet has no right or authority to take punitive action against them merely on the say-so of a copyright agency like AFACT.

That being said, I’m not actually sure why iiNet didn’t at least anonymously pass on the legal letters from AFACT – it could do that without compromising the privacy of those users by revealing who they are to AFACT. In a sense, it would even be a service to those users, who would be well served to know that they are in fact being monitored when they download illegal material from BitTorrent.

My guess is that iiNet is worried about a slippery slope – it’s only one step from passing on legal warnings to being forced to cut users off at the demands of copyright holders. Suddenly the ISPs are forced to become traffic cops rather than neutral network providers, and that would be a huge headache for the industry as a whole.

Anti-censorship protests planned

Speaking of ISPs as traffic cops, the movement against the government’s censorship scheme seems to be gathering steam. I’ve had my inbox inundated with calls to action against the proposed filtering scheme. Nocensorship.info, getup.org.au and others are organising protests against the proposed scheme. Nocensorship.info is even organising a street protest for December 13 (it’s a Saturday) and there are rally locations in all the state capitals.

I have no idea what kind of turnout they will get – but it’s probably enough to bring the issue to the attention of the evening news (which will undoubtedly do a horrible job of explaining the problem). But it will be something at least, and it will raise pressure on Conroy to drop the plan, which can only be a good thing.