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  • Blog, Telecommunications - Written by on Friday, April 20, 2012 13:53 - 29 Comments

    Defence worthy of a High Court victory? “Yes, Minister”

    blog Given iiNet’s conclusive victory in its High Court defence against AFACT this morning, it seems an appropriate time to remind readers of Communications Minister Stephen Conroy’s opinion of the case, aired in March 2009. According to a ZDNet.com.au report at the time, Conroy said:

    “I saw iiNet’s defence in court under oath; they have no idea if their customers are downloading illegally music or movies. Stunning defence, stunning defence … I thought a defence in terms of ‘we had no idea’ … belongs in a Yes Minister episode.”

    Yes, Minister. Or maybe … no, Minister?

    Image credit: kjd, Creative Commons

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    1. Daniel Myles
      Posted 20/04/2012 at 1:59 pm | Permalink |

      He should of been sacked or resigned for those comments back then. A minister influencing a public case is a gross misuse of status and title. Roxon should do the same after she lied to the public on Q & A the other night about Assange.

      • Posted 20/04/2012 at 2:03 pm | Permalink |

        “after she lied to the public on Q & A the other night about Assange”

        How so?

        • Daniel Myles
          Posted 20/04/2012 at 2:12 pm | Permalink |

          Would require me to write a novel but if you look at my tweets Renai (@deejayqf) have a read of the link on my 3rd last tweet, it basically sums most of the points up.

          • Posted 20/04/2012 at 2:20 pm | Permalink |

            Very interesting. Cheers — I’ll do a follow-up article on that.

            • Daniel Myles
              Posted 20/04/2012 at 2:36 pm | Permalink |

              Your welcome :)

              FYI I didn’t just take those statements and comments at face value Renai. Since it was an interview with a single party, I did some research and there is definitely supporting material to back up the claims. When I get home from work I can send you all the “legal stuff” I found that is referenced.

          • Russell Stuart
            Posted 20/04/2012 at 5:11 pm | Permalink |

            > have a read of the link on my 3rd last tweet

            Said link: http://noh8er.tumblr.com/post/21321011295/nicola-roxon-must-resign

            That was a good read. Thanks for the link.

            The narrative is old news that is easily verified, and I am pretty sure it is an accurate summation events. The opinions proffered on the law – gawd knows.

            Old news or not, seeing is spelt out like that makes you feel you’ve fallen down some rabbit hole. It’s like you aren’t reading about how Australia treats its ratbag’s – it’s some other place. We like our ratbag’s.

    2. Posted 20/04/2012 at 3:26 pm | Permalink |

      I wouldn’t put much value to Conroy’s words. There’s a filter that’s clouding his judgement.

      • Bourke
        Posted 20/04/2012 at 9:57 pm | Permalink |

        … yes, a terministic screen that’s been blocking out reality since (not long after) birth!

    3. Wellington
      Posted 20/04/2012 at 5:01 pm | Permalink |

      ….but he wasn’t wrong. iiNet have admitted to a general (but not necessarily a specific) knowledge that their customers use their service to infringe copyright.

      and not sure how he”influenced a public case”? The three iiNet decisions certainly go against that conclusion. In any case, I’m not sure why a Minister isn’t allowed to have an opinion on such matters ….there’s still a separation of powers between the parliament and the judiciary as far as I’m aware.

      • Daniel Myles
        Posted 20/04/2012 at 6:16 pm | Permalink |

        This is why
        http://www.theaustralian.com.au/news/iinet-tests-legality-of-conroy-slur/story-e6frgal6-1225700528796

        Apologies for linking a story from the Australian :) but it does highlight how Conroy could be perceived as
        prejudicing a case which if lost would assist and support legislation his party was interested in implementing.

        • Resin
          Posted 20/04/2012 at 7:04 pm | Permalink |

          ok – the article says iinet sought legal advice……nothing ever came of it, so we can guess the effect of the advice given.

          Otherwise, we’ve got opposition politicians going on about how it was wrong….like those statements have any validity.

    4. Steve Dalby - iiNet
      Posted 21/04/2012 at 2:30 pm | Permalink |

      Senator Conroy was misinformed on a number of accounts, not least was the simple fact that we hadn’t filed our defence – at the time he made those comments. He certainly hadn’t previewed it. I assume his staff at the time may have been a little inventive in their briefings.

      Who knows what he was talking about ‘under oath’ – we wrote to him pointing out the outrageously inaccurate (some would say apocryphal) nature of his statement, we have never had a response.

      It doesn’t matter now, and we’ve moved on to a better place with a much clearer view of the obligations and rights of ISPs. It’s in stone, the only thing that could change that would be to rewrite the legislation. That’s a big ask given the outcome of ACTA, which pretty much said, the Australian Copyright Act is fine as it is.

      • Resin
        Posted 21/04/2012 at 4:26 pm | Permalink |

        “the Australian Copyright Act is fine as it is” …… pfff…what a joke…..and so the lobbying begins.

        Of course iiNet thinks its fine. Piracy has been (and continues to be) a key driver of broadband revenue and now that it’s been decided that ISPs can simply shut their eyes to it with one hand, whilst leaving the other open to accept money from pirates – the status quo is in your interest.

        Reasonable minds will differ, of course, as to whether leaving the Copyright Act, as is, is “fine”. iiNet’s plans to enter the content provision industry will never be succesfful whilst it continues to countenance copyright infringement by turning a blind eye to it. One need only look at the success of iiNet’s FetchTV service to figure that out.

        Defeat in the HIgh Court is a necessary step on the way to legislative reform in this area.

        • Bourke
          Posted 21/04/2012 at 4:48 pm | Permalink |

          Resin,

          The only way to alter the Copyright Act constructively would be to completely throw out the narrow band of exceptions that is the current Australian approach and instead replace it with a broader ‘fair use’ expection style legislation as exists in the United States of America. That’s the only way to keep consumers and rights holders from becoming (more) militant. As it is our laws are actually stricter than the USA right now – and the septics will never take the time to understand the differences, so the only option is to modify our laws to resemble the US laws more closely.

          There is no easy solution. Prepare to dig in for a long, protracted skirmish I’m afraid.

          • Resin
            Posted 21/04/2012 at 5:21 pm | Permalink |

            Sure, but neither jurisprudence allows consumers/ISP customers to download whatever they want, free of charge and without the licence of the copyright owner in the sort of context we are discussing.

            The US isp industry, in cooperation with rights holders, is, of course, kicking off its own graduated response scheme in July this year.

        • Steve Dalby - iiNet
          Posted 21/04/2012 at 7:47 pm | Permalink |

          @Resin.
          Sounds like you have a pretty closed mind on the matter. I assume from your comments that you, too, won’t be happy until the intarwebs are swtched off.

          As to countenancing ‘piracy’ – you obviously are also guilty of “turning your blind eye” to the very public efforts we’ve made to develop a process for policing online infringements, both on our own and in conjunction the rest of industry.

          Now – tell me who it was that totally and utterly rejected those efforts ? That’s right – your heroes in Hollywood. Time to catch up on your reading.

          • Bourke
            Posted 21/04/2012 at 10:20 pm | Permalink |

            I just finished reading the entire full HCA transcript… I must say, some elegantly simple logic used by our Honours – the final line of the judgement is just brilliant – they even quoted MM!

            ‘It was not unreasonable for iiNet to take the view that it need not act upon the incomplete allegations of primary infringements in the AFACT Notices without further investigation which it should not be required itself to undertake, at its peril of committing secondary infringement.’

          • Resin
            Posted 21/04/2012 at 11:42 pm | Permalink |

            @Steve Dalby “Sounds like you have a pretty closed mind on the matter. I assume from your comments that you, too, won’t be happy until the intarwebs are swtched off.”

            Why do you guys always say that like some sort or juvenlie mantra? I mean, has either party in the commercial negotiation asked for internet to be switched off?

            @Steve Dalby “the very public efforts we’ve made to develop a process for policing online infringements, both on our own and in conjunction the rest of industry.”

            yeah saw your one sided scheme – others pay all the costs, you get all the indemnification … blah, blah.
            A scheme developed “in conjunction with the rest of the industry” – meaning your own ISP industry Iie. no rights holders had a say).

            Steve Dalby @ ” “tell me who it was that totally and utterly rejected those efforts ? That’s right – your heroes in Hollywood. Time to catch up on your reading.”

            And I’d suggest it’s time you catch up on your lobbying – http://lobbyists.pmc.gov.au/register/view_agency.cfm?id=93 – because the real race has just begun.

        • Posted 23/04/2012 at 2:56 pm | Permalink |

          “Piracy has been (and continues to be) a key driver of broadband revenue and now that it’s been decided that ISPs can simply shut their eyes to it with one hand, whilst leaving the other open to accept money from pirates – the status quo is in your interest”

          Wait one minute there buddy: broadband has been (and continues to be) a key driver of entertainment industry revenue.

    5. Posted 22/04/2012 at 3:22 pm | Permalink |

      As always, Australia lags behind the ROW.

      lf you follow the news on Torrentfreak, you’d realise that overseas ISPs are increasingly collaborating with the content industry to stamp out net piracy. US ISPs are looking to monetise the strong growth in video traffic by diverting more consumption into legitimate channels, such as IPTV.

      It’s not surprising that small ISPs like iiNet (that derive most of their revenue from selling plain vanilla, commoditised broadband) will be less enthusiastic in “sharing the burden” of stamping out content piracy until their revenue streams from value-added channels such as FetchTV become more substantial.

      All these legal fights that are being played out in public have nothing to do with lofty principles such as defending “net freedom” — it’s all about (mis)alignment of commercial interests.

      If these ISPs see a way of monetising the huge growth in video traffic via legitimate, value-added channels without threatening their overall revenue streams, you’ll find that they will drop the “excuses” and be more “co-operative” with AFACT. This is a major reason why AFACT did not sue Telstra instead — the direct commercial relationships between Telstra and the content industry are much more developed (think: Foxtel and Bigpond Movies). (FetchTV is a resold, third-party product.)

      It’s only a matter of time before Australia catches up with the ROW. Telstra is ahead of the game in developing and marketing value-added channels, and the rest of industry is scrambling to catch-up.

      • SMEMatt
        Posted 23/04/2012 at 10:02 am | Permalink |

        Legitimate channels for content are few and far between.
        ABC iView is great but you do have limited time availability on content it is only what is screen on ABC so if the content is released late in Australia it is available late on iview.

        The commercial network offerings are much worst. Very limited content all ad supported. BTW I have no problem with ad supported content but either advertiser either need to wake up or the network ad departments need to do a better job because if you are going to break up online content with ads I don’t want to see the same unskippable ad 20 times in a row.

        Then there is quickflix more expensive than its US counterpart netflix with a much worst content base and expensive “premium content”, their customer services is rubbish also I lodged a ticket about a week ago regarding an issue with one of the HBO series (mislabeled and missing episode) and still haven’t received a response or seen the issue fixed. Although the above issue does emulated the Australian TV viewing experience where the networks decide to skip random episode and reorder others.

        Right now legitimate content channels are offering a worst experience than pirated content and charging a premium for it. As opposed to other content industries where the pirated content is now offering a worst experience than that provided by legitimate channels.

        What the “major players” in the movie/TV industry are failing to notice is that the type of content they produce is being commoditiesed(sic) by both online content producers making good, cheaply available content online and by the fact they are releasing so much new content. When a product is a commodity and supply exceeds demand prices normally drop hasn’t been the case with the major content produces maybe their is some price collusion going the ACCC should investigate.

      • Russell Stuart
        Posted 23/04/2012 at 11:24 am | Permalink |

        > ISPs are looking to monetise the strong growth in video traffic by diverting more consumption into legitimate channels, such as IPTV.

        Yes, I’d agree with the characterisation this is a bunch of companies acting in their own self interest.

        I don’t agree with your ROW assertion though. In the US there is typically only one broadband provider supplies a premises, and in 75% of cases this is the cable company. Here in Australia we have strong competition at the retail level, with many ISP’s competing for your business. IMHO that is how it should be, and the US has got it wrong. It is only because of these weird conditions in the US that the ISP’s there are willing to threaten and abandon good paying customers.

        I think keeping the media and the internet separated like this is a good thing. Both have to stand on their own two feet. We want internet providers to deliver the cheapest bytes possible, and we want media to produce lots of content at the cheapest price possible. Piracy is a cost of doing business for the media. Ultimately that cost should be born by them and nobody else. So they must shoulder the costs of issuing notices, presumption of innocence, due process and independent arbiters – and possibly recoup some of that through fines. NZ seems to come closest to a sane solution so far, although at $15,000 maximum fine for download songs that can be bought for $1 the quantum seems to be seriously out of proportion.

    6. wilson
      Posted 23/04/2012 at 11:52 am | Permalink |

      Russell Stuart said “Piracy is a cost of doing business for the media. Ultimately that cost should be born by them and nobody else.”

      Well, if you believe in the policy underpinning copyright law (that intellectual property protection incentivises creation), at some point piracy affects us all doesn’t it? If you don’t believe in IP protection – well, that’s another issue…..

      But where piracy runs rampant and intellectual property is not protected, at some stage certain music won’t be made, certain films won’t be made, certain software won’t be made, certain medicine won’t be developed, certain circuit boards won’t be made, certain plants won’t be bred and certain writings won’t be published. On the whole, is that good a good thing?

      And what about where other industries are profting as a result of piracy. I think it’s reasonable to suggest that the broadband revenues would not be as large as they are today, without piracy. Would they? While keeping the two indusitres separate is a meritorious ideal, it’s difficult to argue against their co-dependance.

      • Posted 23/04/2012 at 3:00 pm | Permalink |

        The only place I see a gaping vacuum in available creative output is Hollywood and their endless remakes of remakes. Everywhere else creativity is bopping along quite nicely. Maybe these supposedly “creative” entertainment industry executives should actually invent something themselves and come up with a new business model? Steve Jobs already did it for them, so why couldn’t they think of iTunes for themselves if they are so creative, hmmm?

    7. Russell Stuart
      Posted 23/04/2012 at 1:21 pm | Permalink |

      > But where piracy runs rampant and intellectual property is not protected, at some stage certain music won’t be made, certain films won’t be made, certain software won’t be made, certain medicine won’t be developed, certain circuit boards won’t be made, certain plants won’t be bred and certain writings won’t be published. On the whole, is that good a good thing?

      You are over blowing things. We have examples of industries where intellectual property is not protected, like fashion, and lots of things still get created. Even if it was true some of the things would not be produced, it is also true what is produced would be cheaper so we could consume get more of it. But your assertion we will get less of those things if the status quo is allowed to continue is obviously true. According to the ACTA piracy is rampant. Yet sales of digital songs keep rising, and the MPAA announced 2011 was a record year. This doesn’t sound to me like an industry that will be wiped off the face of the earth if forced to pay for its own business model.

      > While keeping the two industries separate is a meritorious ideal, it’s difficult to argue against their co-dependance.

      Are you claiming the internet would not exist without media? That is like claiming Australia Post parcel service would not exist if Amazon didn’t send heaps of books. The internet is in no way co-dependent on media. People will still be facebook’ing, twittering, reading delimiter, googling to do school work, paying bills, looking up train time tables if there was no media on the internet. The media may well be in the process of becoming dependent on the internet. That’s the media’s problem. People who use the internet to do just those things should not be forced to pay a “media tax” to support draconian copyright laws the media claims it needs to survive – while at the same time it is growing without them!

      • wilson
        Posted 23/04/2012 at 1:32 pm | Permalink |

        It depends on your definition of “media” I guess. You’re probably talking about big media ie. newspapers, books, tv programs, games, music, movies….certainly the internet existed before such media was distributed by way of it. I’m just saying that the availability of big media on the internet (pirated or otherwise acquired) has assisted the growth of the internet (be it in terms of subscriber numbers, revenue, bandwidth or whatever).

        You’re probably right that one day, big medai will be entirely dependent upon internet protcols for its business model (as will alot of other industries) but it would be ignorant to think that the ISP industry hasn’t benefited from the widepsread availability of big media on the internet. To that extent, they’re co-dependent.

        • Russell Stuart
          Posted 01/05/2012 at 11:37 am | Permalink |

          An example of what happens when internet suppliers and content suppliers are in each other pockets popped it’s head up today.

          Hulu decided it will no longer allow people who don’t have a cable subscription view it’s content. From http://www.nypost.com/p/news/business/tv_in_real_dime_ph0GiKk7rC9agDUEkHae2I :

          “The move toward authentication is fueled by cable companies and networks looking to protect and profit from their content. The effort comes as entertainment companies continue to face drastic shifts in home viewing habits. Overall spending on home entertainment edged up 2.5 percent to $4.45 billion in the first quarter …”

          Notice how the pattern is repeated. The industry profits are growing, yet they are clamping down on ways people can buy their content. This is almost certain to lead to an increase in piracy, which will then be used an another excuse to try and force the ISP to restrict the activities of their customers even further and pay for implementing those restrictions.

          This has to stop. The content producers should not be allowed to push the costs of running their business onto others – even the costs of dealing with piracy. In the long run it is bad for everyone – the ISP, the consumers and I suspect ultimately the content producers because in every case (eg VCR’s, audio tapes), so far a reduction in publishing costs has meant more sales in the long term. Despite that they have fought technological advancements at every step.

      • SMEMatt
        Posted 23/04/2012 at 5:15 pm | Permalink |

        Some of the greatest creative works of all time were created without copy right protection.




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