If You Only Share A Tiny Bit Of A File Via BitTorrent, Is It Still Copyright Infringement?

from the depends-on-who-you-talk-to dept

We've mentioned the ongoing lawsuit against ISP iiNet in Australia a few times. Basically, the movie studios are pissed off at iiNet because it didn't do much in response to letters that were sent concerning IP addresses of those that the studios believed were sharing unauthorized works. As iiNet noted, however, it didn't see why it was involved in any of this:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

The trial has been going on recently, and while I haven't been following the details that closely (figure it's worth waiting for the verdict), there was one interesting tidbit. As the company had suggested earlier, it's arguing that sharing a file via BitTorrent is arguably not copyright infringement at all. That's because of the way BitTorrent works, in breaking up any file into tiny components and sharing the individual pieces. A key element of copyright law is looking at how much of the content is shared. Down in Australia, they have a "fair dealing" exception to copyright law that appears to allow for copying small portions of a work, and some precedent of short video clips not being considered infringing.

While I would be quite surprised if this argument worked (even if it may be technically correct, it's so rare that judges pay attention to the technical aspects when it comes to copyright), I'm a bit surprised we haven't seen this argued elsewhere as well. Of course, if it does actually work, it will only turn the focus back towards the question of whether or not "making available" violates the distribution right of copyright, since that would cover what BitTorrent users were doing, if they offered up any unauthorized content (even if they actually shared only a tiny fraction).

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iiNet Says Complying With Anti-Piracy Complaints Would Violate Telecom Laws

from the privacy-anyone? dept

We've been following the lawsuit down in Australia, where AFACT, the local entertainment industry "anti-piracy" group, has sued ISP iiNet, complaining that the ISP refused to do anything when it would send over infringement notices. From the beginning, iiNet's response has been clear:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

AFACT continues to insist that iiNet should be responsible for becoming copyright cops themselves, and had won an early battle, forcing iiNet to hand over "sample" records of users. However, Big Al points us to the latest news, where iiNet is claiming that not complying with AFACT's usual demands (it is handing over the sample data after working out the details) isn't just an issue of iiNet not wanting to be AFACT's enforcer, but that it violates Australia's telecom act, and could be a serious breach of privacy laws:

"Under the Act, it is illegal for iiNet to use customers' personal information in the manner demanded by AFACT without a court order or warrant. Breaches of the privacy provisions of the Act can attract a two-year gaol sentence."

Separately, iiNet noted:

"To examine customer communications on the basis of a third party's allegations would be a criminal act for us to engage in."

"Our starting position on this would be there is good public policy reasons for why Australia Post should not be opening your letters. And good reasons for why carriers should not be listening to your phone calls or looking at what you download. Our view is that would constitute a criminal offence."

It should come as no surprise that AFACT isn't buying this, calling it a "very novel" argument and one it hadn't seen before, and claiming that IP address information is not the sort of information that's meant to be included under the telco act, since it's not really "confidential." This case just gets more and more fun to watch (though, if I had to guess, iiNet's arguments probably won't prevail).

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Australian Press Prints Movie Industry Myths About Piracy Funding Terrorism

from the does-skepticism-exist-down-under? dept

Isn't the press supposed to actually investigate claims handed to them by industry lobbyists? Apparently not. A bunch of folks have sent in the fact that the Sydney Morning Herald has published a totally one-side and unsubstantiated article claiming that "movie pirates fund terrorism." There are just a few problems with this -- including the fact that the so-called evidence for this is weak or non-existent, and the only evidence that is provided comes directly from the movie industry itself, who has every incentive to push this ridiculous story, despite the fact that the movie business continues to have record breaking years at the box office, and attendance is way up this year so far -- despite a massive worldwide recession.

None of that makes it into this article, by two supposedly professional reporters.

Instead, we're told that "piracy" costs the Australian movie industry $233 million per year and "affects at least 50,000 workers." Affects how? That we're not told. As for the $233 million number, that comes from AFACT -- the Australian Federation Against Copyright Theft, hardly an unbiased party, though the gullible reporters seem to take its spokesperson's words as gospel that cannot be questioned. About the only thing that said spokesperson, Neil Gane, can show as someone being impacted is that "the people who own the local DVD shop who are having to lay off staff." Uh huh. And the people who own the local CD shop are doing so also -- but it's not because of "piracy" but because of competition. You know who's staffing up, though? Apple stores and video game retailers... Hmmm... Why is it that AFACT doesn't count their job growth in its numbers? I wonder...

Then there's the claim from the Media Entertainment and Arts Alliance's director, Simon Whipp, claiming that all this piracy is impacting the least well paid people in the industry: "We're talking about a group of people who earn an average wage of about $15,000 a year." Honestly, all I can think is that (1) why is the industry paying people such crappy wages and (2) they're probably a lot better off in other jobs then, where they might earn a bit more. I don't see that as a problem of piracy. It seems like the movie studios aren't paying those employees enough to keep them in their jobs.

From there, the article moves on to the absolutely ridiculous, promising to "show how movie piracy is being used to fund terrorist groups including Hezbollah and Jemaah Islamiah, responsible for the Bali bombings in 2002." That would, indeed, be quite interesting, but the article fails to even come close. Instead, it talks about a guy in Sydney who camcorded some films and uploaded them to one of many online groups. What the article doesn't mention is that the same films were almost certainly uploaded by numerous other people, and there's a good chance that most of those films pretty quickly had official (non-camcorded) versions leaked online by industry insiders. But, wait, we're supposed to be learning how this one guy's movies are connected to terrorists.

But, we don't. Instead, we find out that the movies he recorded (but no mention as to whether it's specifically his recordings) showed up in Britain, the United States, Mexico, Spain, Malaysia and the Philippines. We're told that the movies are manufactured and sold in the streets. That's great, but it ignores the fact that, thanks to all this "online movie piracy" the whole "counterfeit DVD" business has been going downhill. In fact, if you must connect the sale of counterfeit DVDs to terrorists, then you should be happy for online piracy taking away that market.

Is any of this suggested in the article? Of course not.

But wait, weren't we supposed to be finding the elusive missing link between movie downloading and terrorism? We were following the camcorded movie recorded by the one guy in Sydney, which showed up in other places... but there the trail ends cold. Instead, we're told to just trust the experts. Ganes (quoted earlier) shows up again to claim: "It has been recognised by governments... that there is a link between movie piracy and terrorist funding." Oh really? It has been recognized by whom? Only by a study funded by the MPAA which didn't really talk about online piracy, but about counterfeiting, and which had numerous methodological problems. At least the article admits that the study was funded by the MPAA, but never considers that it may be biased because of this.

The article quotes the authors of the study, claiming: "If you buy pirated DVDs, there is a good chance that at least part of the money will go to organised crime." Of course, organized crime is not the same as terrorists, but does the article mention that? Nope. It wants you to assume they're the same thing. It also doesn't discuss the declining sales of counterfeit DVDs.

But it does jump back to the Philippines, where local actor Eduardo Manzano has the definitive proof of the link to terrorists. It's because he says so! "In this country, we have the triad, and we have terrorist organisations which are being suspected now of using profits derived from DVDs for possible terrorist activities." Then, in dramatic fashion, the reporters discuss a raid on counterfeit DVDs, and from there we're told that the guy who camcorded movies in Sydney didn't get a big enough sentence.

Got it? With some gullible reporters, a lack of fact checking, questionable information, a lack of context, a total dearth of anyone who might question the bogus information put forth in the article, we have an article promising to show the link between piracy and terrorism that does nothing of the sort. Now who's out there complaining again about how these professional reporters need to have special protection since they actually do real investigative reporting?

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Court Orders iiNet To Hand Over Sample Records Of Customers

from the privacy? dept

iiNet is the Australian ISP that has been standing up for its customers' rights against the entertainment industry which is suing the ISP for not magically stopping copyright infringement. iiNet's argument, from the very beginning, has been that if the entertainment industry believes that iiNet customers are breaking the law, then they should sue those customers. It shouldn't be iiNet's responsibility to act as the industry's police:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

iiNet has also raised questions about whether or not a user making use of BitTorrent is technically violating copyright, especially since they may only be sharing a tiny fragment of a file based on the way BitTorrent works.

Either way, a court has now ordered iiNet to hand over a small sampling of customer data requested by the anti-piracy group AFACT, which AFACT claims will show infringing activities on the part of iiNet subscribers. Of course, it would be no surprise at all that a group of folks hand picked by the industry can be shown to be infringing. The real legal question is whether or not (a) there's enough evidence to prove who was actually infringing and (b) more importantly, why this is iiNet's responsibility.

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