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iiNet Wins High Court Copyright Case #iitrial

April 21, 2012

There was massive media coverage yesterday and today when the Australian High Court ruled against AFACT (Australian Federation Against Copyright Theft) in its case against Australian ISP iiNet (see this Google News Search). As a lot of the media reports have stated, AFACT represents “Hollywood” or, to take the formal description from the AFACT website, “[AFACT] was established in 2004 to protect the film and television community, retailers and movie fans from the adverse impact of copyright theft in Australia.”

I’ve written previously about my position on piracy, but I always thought bringing a case against an ISP on copyright grounds was never going to be successful. I can understand why AFACT did go after an ISP – it’s a much easier target than the file sharing sites from a geographic and jurisdictional standpoint; you can’t bring a ‘reverse class action’ against all the people who are illegally downloading copyright material and making an example of just a few individuals is not likely to deter the masses; and you can at least demonstrate how the ISPs are profiting from this illegal downloading in terms of the revenues being generated from bandwidth usage.

However, just because it is easier to go after the defendant it doesn’t mean you’ll win the case.

What we will see as a result of the High Court judgment is pressure on legislators in Australia and around the world to update their intellectual property laws. However, I think we will also see an acceleration in the adoption of online content and delivery models from the big entertainment and publishing companies. They can make it work – iTunes and Amazon have demonstrated this already, and even Telstra’s T-Box does it pretty well (although it could do with a much better selection of movies, and a less clunky interface to find stuff!).

People who are used to global and instant access to information that defines the Internet, are demanding the same from the more traditional forms of media. iiNet’s CEO Michael Malone said as much in ZDNet’s report on the case:

“As a self-professed Game of Thrones tragic, iiNet’s Malone said it pains him to be waiting for the new episodes to come up on iTunes while they are already available through BitTorrent.”

I still don’t think it’s right as a user to download copyright content without paying the true owner for it. It is theft, whatever way you look at it. I had the same argument with one of my boys the other day. At our local markets, there was a guy selling pirate DVDs for a fraction of the retail price and I wouldn’t let my 12-year-old use his own money to buy a Simpsons boxed set. I tried to explain to him why it was the same as stealing from someone. Just because it’s easy to do it, and there is no clear victim, it doesn’t change the fundamental definition of theft.

I’m not trying to defend the big studios – and just because you might have left a door unlocked, it doesn’t give someone the right to walk into your house and take your stuff. However, I read somewhere that AFACT spent $12 million and iiNet $9 million in legal fees … just think if that money had have been channelled into developing an online content delivery and management system …

(Pictured: “Pirate Deck at Club Earl”, Earl-What I saw 2.0, available under Creative Commons Attribution-NonCommercial-ShareAlike License 2.0 licence.)

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