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AFACT escalating threats against ISPs: reports

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Australia’s “copyright versus the Internet” battle, which had become quiet as rights-holders prepared their High Court appeal against the iiNet trial decision, has flared in fine style, with rights-holders’ rep the Australian Federation Against Copyright Theft (AFACT) escalating its threats against Internet service providers.

According to The Australian and Delimiter, AFACT is writing to ISPs demanding that they respond to its demands for actions within seven days.

With fine impartiality, the letter has been sent not only to Telstra and Optus, but even to ISPs whose customer agreements are more favourable to AFACT’s position, including Exetel, which already has provisions for issuing warnings and even disconnecting customers.

The rights-holders’ attack dog has so alienated Exetel that its boss has shown the letter to media, and describes the letter as “bullying”. The letter sets a deadline for this week for recipients to respond, and relies on comments made in the minority judgment in the most recent appeal in the iiNet case.

In the Roadshow Films Pty Limited v iiNet Limited appeal, the majority judgment dismissed the rights holders’ action against the ISP.

However, Justice Emmet wrote that the case may have succeeded, had rights-holders followed an acceptable procedure. This is described in paragraph 210 of the judgment, and can be summarized as requiring:

1. The ISP has been advised of the particulars of an infringement.

2. The rights-holder has requested specific action (including informing the customer of the allegation; inviting the customer to refute the allegation; a warning that service will be suspended if no response is received; a warning that if infringements continue the service will be terminated; and finally, termination of the service).

3. The evidence provided to the ISP should be “unequivocal and cogent” and presented in a way that allowed the ISP to independently check the assertions.

4. Provisions to reimburse the ISP for the cost of investigation, and indemnification against lawsuits from customers whose services are terminated by mistake.

In other words, the copyright holder can’t just throw accusations at ISPs and leave them to work out the truth of the matter: they have to put skin in the game.

El Reg comment: If you’re in the mood for an entirely unfounded speculation, here’s one: the news from barristers working on AFACT’s High Court appeal hasn’t been promising.

If its barristers had driven trucks through holes in the Federal Court appeal judgment, there would be no need for a parallel campaign. AFACT and its backers would need do nothing but sit back and wait for their next day in court, knowing that their position would be impregnable once the win was in hand.

In launching a pre-emptive campaign based on a minority verdict, AFACT invites the belief that the current advice from its barristers is “save what you can”. ®

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