AFACT v iiNet: Day 7 – Investigators Condoned Infringement?
Written by enigmax on October 14, 2009Day seven of the trial between AFACT and Aussie ISP iiNet. In cross-examination of anti-piracy bosses from the movie studios, Paramount said it would complain to BitTorrent Inc about the unauthorized use of its logo, while AFACT’s boss was forced to admit his investigators could have themselves condoned infringements.
It’s day seven in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two, day three, day four , day five and day six).
Today iiNet’s lawyers cross-examined representatives from 20th Century Fox, Disney, Warner and Paramount via video link.
After being accused earlier in the trial of having deals in place with BitTorrent Inc, ZDNet reports that Paramount admitted it had a deal with the company for it to prevent illegal copies of its movies being shared via its BitTorrent software. However, this seems more likely to be a filter applied to search results on the BitTorrent.com site, rather than any obstruction in the software itself. Any notion that BitTorrent Inc spied or spies on users of its software in order to restrict their activities would be a disaster for the company.
Paramount could not confirm if the deal prevented piracy or not but acknowledged that it ran from October 6 2006 until October 6 2008, and had now expired. Paramount had an option to extend it for a further year, but did not.
As mentioned in our earlier coverage, iiNet lawyers suggested that the publishing of studio logos (including that of Paramount) on the BitTorrent.com website could have caused some confusion for potential BitTorrent downloaders.
However, according to a report, Paramount could be set to lodge a formal complaint with BitTorrent Inc over what it described as “unauthorized use” of its logo. This development seems to be somewhat of a cheap shot by Paramount. Their logo has been on the BitTorrent.com site for a very long time (and remains there today) so the ‘revelation’ in court that it exists there should hardly come as a surprise – they were business partners after all.
iiNet lawyers put it to 20th Century Fox anti-piracy boss Ronald Wheeler that making material available online helped to reduce piracy. While he could not confirm that immediately, he did say that because content is available online, it counters the argument that the only way to obtain the content is illegally.
Warner representative David Kaplan confirmed that his company also had a deal with BitTorrent Inc but although he couldn’t be certain, he felt the deal had expired since the MPA hadn’t kept him updated about it.
iiNet lawyers also produced a document which was alleged to be license agreement between Warner and the defunct Wurld Media, to distribute content via P2P. While Kaplan admitted the deal was now dead, he confirmed the authenticity of the document.
A further interesting development came after AFACT chief Neil Gane admitted that his organization’s investigative techniques – hiring someone to pretend to be a regular iiNet customer in order to engage in file-sharing of copyright works with other iiNet customers – could be construed as copyright infringement in itself.
In last week’s court sessions, iiNet lawyers put it to Gane that AFACT could have been involved in condoning copyright infringement, referring to the actions mentioned in the previous paragraph.
Gane admitted that there would have been occasions where AFACT’s own investigators had undertaken an activity which had been described by iiNet lawyers as “an infringement of copyright”.
“And that’s something you will tolerate happening at your own premises?” said iiNet lawyer Richard Cobden.
“It’s an investigative technique,” Gane replied
The case continues.
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46 Responses
Looks promising so far….
“It’s an investigative technique,” stated by AFACT chief Neil Gane
So from now on we are all Private Investigators using the very same investigative technique.
The chief of AFCAT Neil Gane as given us all his blessing to investigate.
come on iinet blow em out of the water. excellent effort so far by iilawers.
I’ve always found it interesting how law enforcement also considers committing crime to be a legitimate means of catching others committing the same crime.
So, They hire goons to dl wouldn’t that be illegal too. That makes no sense. I REALLY don’t know what the point is? The newest movies out are horrible anyway. I don’t think anyone should have to pay for a crap movie.
Suckbags Plaintiffs are going to lose anyway. If you look at a movie like a car. Would you pay double for the car with flat tires or the one that runs.?
If AFACT somehow manages to win this case, Aussie courts are more corrupt than the Swedish courts and dumber than Minnesota jurors.
The judges are probaly old and senile and have no sense of the case anyway. They just wanna go eat dinner and take a nap. Kick those old fuckers outta there and get some real people in there. Just as bad in the U.S.
Was wondering when AFACTs investigative techniques might come back to bite them!
I guess cops should be allowed to do drugs then. It’s just an “investigative technique”, right?
Copyright lobby groups: spreading hypocrisy since the dawn of P2P.
@7 Oct 14, 2009 at 12:46 by Somebody
:))
That was bloody poetic truth there, very nicely put.
Cheers!
Hey Hollywood:
Just want you to know that because of your lame greedy behavior I refuse to buy any new movies from any of your corporate krap studios.
I will help out my local economy over yours any day of the week by buying your movies used and this is helping out my local town and not you at all.
Furthermore I will buy your TV Show boxsets new only to support my fave TV Shows not to support your bloated krap business.
They own the copyright. They’re asking people to download it in order to find out who else is downloading it. They’re using copyrighted material in a way the copyright owners want it to be used. You can’t use that as an argument against them.
@12 Oct 14, 2009 at 14:36 by DuellistOrigins
“They own the copyright. They’re asking people to download it in order to find out who else is downloading it. They’re using copyrighted material in a way the copyright owners want it to be used. You can’t use that as an argument against them.”
Bullshit. Downloading has not been considered a copyright offense in anything other than industry propaganda. In the real world, in the courts, uploading has always been the offense.
DuellistOrigins @12
AFACT is a federation of organizations and as such hold no copyrights.
@DuellistOrigins is that not entrapment then? So its ok for the IP holder to upload their own IP to a public network, but no-one is allowed to download it? Sounds confusing to me
If AFACT had been bright, they would have obtained a “distributive license” or “express written consent” from the movie companies. That would have covered their butt as far as uploading copyrighted content. But then again, it could then be argued that iiNet customers had no way of knowing when they were and were not downloading from these ‘authorized distribution centers,’ so never mind that. Ha, good one iiNet.
Though, for the record, undercover cops ARE allowed to do drugs in the line of pursuing their investigation.
“It’s an investigative technique,” Gane replied
Yep, an investigative technique also known as entrapment.
Wow, that one sentence at the end might make anyone go WTF? SERIOUSLY? You’re going to say that in a freaking court room instead of saying something to dodge the question? WOW If anything, they are damn bold, +2 respect to that guy for even having the guts to say it.
But seriously, this case looks to be falling apart now in iinet’s favor.
@ Oct 14, 2009 at 15:40 by Thraprod
“Though, for the record, undercover cops ARE allowed to do drugs in the line of pursuing their investigation.”
I’d sure like to see some evidence to support that.
Not sure what country you’re in, but in the U.S., as far as I know, if they are confronted with the question. “Are you a cop?”, they have to be truthful for it to hold up in a court of law.
If only George Michael had know…the question should be top,bottom or cop….. lols
@19 Yes, if asked directly, they do have to answer truthfully. BUT we weren’t discussing them being asked, we were discussing them doing drugs while undercover. *L* Don’t have any exact laws on hand, but it’s been in almost as many movies as the ‘what are you? a cop?’ line.
@21
No, actually we weren’t discussing drugs at all. YOU were. We were discussing the AFACT vs iiNet case.
Touche!
@22
Well, I was replying to “Voice of History” and the line you quoted from my reply was about drugs. *shrug*
@23
I was in agreement with you until you got off topic with the drug thing:)
To clarify.
Entrapment is only applicable to law enforment officials. If you (assuming you weren’t a cop) were to convince your friend to do something illegal, while you would be liable, so would he. It doesn’t apply to what counts here as spying.
Secondly, who’s saying they’re uploading? It’s far more likely that they stick whatever they own into google, find the torrent with the most seeds, and connect to as many seeds as possible. Then, any ip addresses that upload to them are guilty of breaching copyright by making available the copyrighted material. It doesn’t matter that they’re making it available to someone who has permission to use it already, the fact they’re giving it away is enough.
And AFACT are representing certain people who do own copyrights, and they’ll be contracts establishing the fact they are looking for people breaching it.
I don’t support them, but their methods are valid. The question is whether or not they are legal.
@19
In the US, an undercover cop is not restricted by having to dmit they are a cop. Otherwise undercover cops wouldn’t be able to achieve anything.
I can see it now….the undercover cop saunters into the den of a drug dealer. He plays his cool and gets a seat wth the leader. He calmly sits down, and lays his trap out. The leader calmly responds, “Sounds like a good deal, but first I need to know. Are you a cop?” The undercover agent rolls his eyes, stands up and says “awww, you got me!” and proceeds to get shot in the back.
Weren’t you reading?
“iiNet lawyers also produced a document which was alleged to be license agreement between Warner and the defunct Wurld Media, to distribute content via P2P”
Distribute = Uploading
“A further interesting development came after AFACT chief Neil Gane admitted that his organization’s investigative techniques – hiring someone to pretend to be a regular iiNet customer in order to engage in file-sharing of copyright works with other iiNet customers”
What “regular” file-sharer engages in file-sharing with only others on their same ISP? There’s nothing “regular” about what they’re doing.
@27 Oct 14, 2009 at 19:02 by Rawr
Here we go with the drugs again. Some of you have clearly been downloading too many crime dramas.
It might be best to stick to comedies to stay relevant to where this court case is headed. :D
Entrapment only refers to law enforcement officers. Entrapment is the act of convincing or inducing someone to commit a crime that they would not otherwise have done.
Since AFACT are not law enforcement, the issue does not involve criminal acts, and they have never induced anyone to do anything, it fails all three parts of entrapment.
It’s a common claim and one that’s never had any relevance.
Secondly, in the US, police officers do not have to tell the truth at all. In interview they do not, in the initial investigation they do not, they can lie all they want. Ask any lawyer.
“In the US, an undercover cop is not restricted by having to dmit they are a cop. Otherwise undercover cops wouldn’t be able to achieve anything.”
The problem is that their “investigators” are no cop and have no right to spy on people period!
“Since AFACT are not law enforcement”
Then where do they get the notion they are?
“Secondly, in the US, police officers … can lie all they want.”
No wonder we have more people locked up than any other country. *Sigh* Where’s the justice then?
“iiNet lawyers also produced a document which was alleged to be license agreement between Warner and the defunct Wurld Media, to distribute content via P2P. While Kaplan admitted the deal was now dead, he confirmed the authenticity of the document.” – am I missing something here? If the content is licensed to be distributed then it can’t be a crime to download it from the distributer!
Wurld Media had deals with Warner, FOX and NBC Universal and where distributing thier shows and movies as a closed beta test Wurld Media where looking at a model similar to Netflix’s Watch Now via P2P.
That is strange.
Bit Torrent is a two way street is it not?
Technically if AFACT hired someone to download and upload content wouldn’t anyone who received content from that person be downloading legally even though it is copyrighted?
If not could i not just as easily record songs, seed them myself and then prosecute anyone who tried to download?
It is like offering someone a cookie than prosecuting them for taking it. I don’t believe they could have it both ways here. Right? ^^
Oh, so it’s all right to infringe on copyrights, so long as you do it FOR JUSTICE!!!! or whatever they call it? That’s ridiculous. “Oh, officer, it’s OK that I robbed this bank. I was just investigating bank robberies.” “Oh, it’s OK that I buy and use drugs. I’m just investigating drug use.” “Oh, it’s OK that I killed twelve people, I was just investigating murders.”
To clarify above:
If a company who is permitted to upload content by the copyright holder decides to upload content and distribute it.
Wouldn’t everyone who was involved in the downloading of that content be doing it legally as it was allowed in the first place by the copyright holder?
Actually, the nature of bittorrent protocol makes every seeder to be an uploader therefore, they’re infringing copyright.
I said uploaders are infringing copyright, because not every country’s law says “downloading without paying is theft”(think of this very popular statement : the pirates won’t buy that shit anyway! if they can’t download, they won’t give a fuck).
the problem is that these bad bad bad evil uploaders are uploading what they’ve snatched from other evil filesharers hired by AFACT – it’s like this.
A bunch of gangs and mobs come and pass you a bag full of doses. how kind of you, you share it with your friends. since drug is a fucking serious problem that our society has been dealing with, the cops are after you. you’re a plague, you filthy junkie-drugdealer bastard! however those gangs and thugs who handed the materials to you in the first place are allowed to just walk away, because they’re allowed by copyright holders.. i mean the court, the politicians, the bigg companies, and a selected few like cunty blunty and lillie allen.. or what was that girl’s name.
To fix 39’s analogy.
Assume you have a drug dealing business. The source of these drugs is a bit dodgy, by being created by copying someone else’s patented process.
You proceed to give these drugs out to all of your friends, using a clever system of notes.
The person who first created the drug gets in on the act, by approaching you one day, and asking for a sample. In order to make sure no one person carries too many drugs (assume they’re heavy drugs), your careful system of notes sends out several notes to various different people, who then send notes back to the person who first created these drugs, sending a couple of grams along the way.
Unfortunately, the notes system, while technically ingenious, requires everyone to sign their name at the bottom of the note. Now, some people put down a pretend name, or use someone else’s name, but the person who originally created the drug now has a list of names of people who have broken their patent.
Oh hey, they can sue those people.
The only solution is to kill everyone over thirty.
iiNet prepares heavy artillery. AFACT is going down!
Way to go iiNet!
What I want to know is; Are these anti-piracy agencies bonded/registered/whatever as qualified evidence gathering and handling organizations?
All of their evidence consists of screenshots and log printouts, both of which could be easily faked by anyone with half a brain. Give me a list of the IP addresses they use and I’ll whip up a 100% accurate screenshot of them sharing the latest RIAA albums.
In the US, at least in criminal trials, all evidence has to be handled by qualified personel. They don’t let just anyone handle or take posession of the evidence because then they can’t know if it was tampered with or not.
This prrincipal seems to be ignored where these companies are concerned.
I’d love to see a court case where they pull out their screenshots and the defense loads up a paint program, opens the screenshot and pastes different IP addresses over the ones for the defendant.
Hi, I’m Reasoned Mind and I sniff butts.
Powned
The problem, I think, boils down to one simple thing: AFACT ain´t saying how and what is exactly gathered. Unless they provide information confirming that the “offenders” were uploading (and not only uploading, but uploading correct data) then they can´t claim any non-authorized distribution was taking place. After all, just because a BT client announces that it has a certain hash doesn´t mean that it really does have the data that the hash is generated from.
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