A private investigator who spent 15 months as an iiNet customer provides key evidence for last week’s copyright infringement action against the Perth-based ISP.
Some are calling it ‘entrapment’ but the tactic of gathering evidence by signing up as a paying customer is legal in Australia.
PI joins iiNet
According to a ‘Particulars‘ document that is referred to by the main Application, investigator Aaron Herp was employed by the Australian Federation Against Copyright Theft, and signed up with iiNet in late June 2007.
iiNet allocates IP address
At some stage between September 2007 and November 2008, iiNet is said to have allocated IP address 124.171.59.149 to Herps’ account. This may be an IP address that lives in infamy for iiNet.
iiNet not fast enough for PI
For more than four months, the document states, Herps exchanged emails with iiNet support staff about the slowness of his BitTorrent downloads.
Whoops! We bet those emails were about the first thing iiNet reached for after reading the court documents. Let’s hope they don’t do serious damage.
Investigator turns downloader
Herps is then said to have spent 18 weeks downloading copyright movies as an iiNet customer and in turn making them available through BitTorrent.
AFACT informs iiNet
So the story goes, iiNet was then supplied with full details of Herp’s activities, including IP address, dates, times, file names, file hash values, the corresponding original film files and studio names.
The significance of the hash values is that they can provide practically indisputable proof that a file uploaded or downloaded is one and the same. It isn’t just a different file with the same name, or even coincidentally the same file size.
This is the kind of evidence that courts have previously accepted as proving copyright ‘theft’. In other words, AFACT is saying that iiNet wasn’t just being asked to act on the basis of unsubstantiated allegations; it had a mountain of evidence on hand.
Perhaps importantly, the document says that the evidence was addressed personally to iiNet supremo Michael Malone.
‘It’s OK’ says Malone
In a rather snide bit of legal pleading, the document next refers to three news stories where Malone seems unconcerned that peer-to-peer is booming. Malone certainly doesn’t say that copyright breach is OK, but the reports are cited as if that’s a possible conclusion.
The PI escapes censure
The document claims that Herps was never contacted by iiNet about his downloading.
The document’s conclusion …
It asserts that failure to discipline Herps and others constituted encouragement to download in breach of copyright. Contract terms prohibiting infringement could have been enforced, but weren’t. Warnings could have been given, but weren’t. Services could have been terminated, but weren’t.
It’s another brick in an (attempted) wall
Many internet users have denigrated the applicants’ evidence assuming it was nothing more than those computer-generated US-style notices that land in their thousands at ISPs’ headquarters. If nothing else, Mr Herps’ involvement puts that idea to rest.
But was it legal ?
Forget about ‘entrapment’ arguments. Herps’ evidence isn’t even being put forward in a way that would constitute entrapment under US law. It’s mainly put as ‘icing on the cake’ to show that iiNet wouldn’t warn a user or enforce its own contract terms in (what AFACT will say) is the clearest of cases.
There may be problems with the Herps evidence, but ‘entrapment’ isn’t one of them.
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WRT “iiNet not fast enough for PI”
BitTorrent is a LEGAL method of downloading LEGAL content. Publishers do release legal content via this medium. This does not mean iiNet are helping condone downloading illegal content.
Just a thought regarding that matter.
The “mountain of evidence” that AFACT has against an individual is not (and should not be) of any consequence to iiNet or any other carrier.
It is the purpose of the courts to weigh any evidence of wrongdoing and to provide judgement.
With this evidence, AFACT should launch a lawsuit against the individual and I’m sure iiNet would be happy to comply with a subpoena issued to discover any alleged copyright infringer’s identity.
AFACT is then able to engage in communication with the infringing party. It should not be iiNet’s or any other carrier’s responsibility to police the internet.
If this were to cost AFACT more than they believe it is worth, they are free to negotiate deals with ISPs so that they can be compensated for the labour costs they would bear and loss of business caused as a result of enforcing such a policy.
These people are absolute dogs. For this, you will be punished.
I’m wondering – does this open the door for iiNet to sue AFACT for damages in the case that a case is successful against them?
iiNet have publicly stated that they pass all details given to them about users suspected of downloading copyrighted material onto the Police, and that AFACT failed to follow up with the Police.
If a person is breaking the law, surely it is the role of the POLICE to enforce that law, not an ISP?
iiNet should not be the police of their network
If someone makes a threatening phone call on Telstra’s phone network, the proper thing to do is call the police and the police can ring Telstra and demand phone records or get a court order etc
Before iiNet violates their users privacy, and possibly violates wiretapping laws, AFACT should file a civil suit against the user for copyright infringement, and obtain a court order for iiNet to provide records, or AFACT should report their “evidence” to the police
Telstra, iiNet etc are “common carriers” of the Internet. You wouldnt ask the postman to police the contents of the letters he delivers would you?
“For more than four months, the document states, Herps exchanged emails with iiNet support staff about the slowness of his BitTorrent downloads.”
BitTorrent is just a protocol, it does not automatically constitute piracy of copyrighted works. However, if Herps actually mentioned content that is obviously copyrighted, iiNet should have challenged his authority to download said content. For practical reasons, service desk personnel shouldn’t be expected to know every title of every piece of copyrighted work; AFACT should provide a database for this if they expect ISPs to be able to identify potential piracy from correspondence with customers.
AFACT is going after the wrong people. If you buy a tainted bottle of water, do you go after the retailer or distributer? No, you complain about the manufacturer/supplier. MPAA/AFACT should be suing content providers in the US for broadcasting unprotected content. It is the same with installing an insecure wireless AP: you just don’t do it unless you want people to steal your bandwidth/internet quota.
If Herps was authorised to make the copies, then there was no copyright infringement and iiNet was correct not to take action.
If Herps was not authorised to make copies, then Herps committed copyright infringement and should be prosecuted for it.
Ummm wasn’t this PI breaking the law by downloading copyrighted material..Since he has admitted it shouldn’t he be charged and all evidence obtained by him inadmissible since it was obtained by illegal means???
I was thinking along the same lines as KL. So, if in fact, he was legally downloading the content, how was iiNet to know this. If iiNet had taken action against him they would have been stopping legal downloading. This seems to reinforce the arguement that they should not be the police as they do not know the nature of the downloads.
This case is a joke. ISPs are not required by law to monitor or police third party usage. They do not have to listen to legal rhetoric mailed to them by third parties, most of those documents are legally false and misleading. There is a procedure to follow and that requires obtaining a court order, which ISPs MUST follow.
Unless IInet has failed to follow a court order then they are protected by the law, otherwise we would have no infrastructure if ISPs could be sued. It amazes me that this could go to court, what a cosmic waste of our taxes.
I wonder if anyone is watching the watchers.
18 weeks downloading copyright movies..
Come on Herp.. Tell us, have you ever gone over the speed limit.
AFACT hired PI to download some data over the bit torrent protocol. Now with saying that, AFACT has indeed allowed PI to download copyrighted material which they are trying to protect(will never be able to do). So in downloading that data PI has NOT engaged in ILLEGAL downloading since he was authorized by AFACT, am i right?
And asking about an internet protocol does not mean said person is downloading ILLEGAL data… Game developer Blizzard Entertainment uses Bit Torrent to share its patches…
On a serious not. why was IINET targetted for this with only 5% market share…
Why not Telstra or Optus.. These are the players who has the biggest share.
And besides all roads lead back to TELSTRA
COME ON “AFACT”
Let me get this straight – AFACT specifically give a person the job of violating copyright while using iiNet’s network, and now want to sue iiNet for it? Are they joking?!?
According to that logic, I can write say a small program, make it available for legal sale on the Internet, ask a friend to make it available via bittorrent, and then sue their ISP for damages if they don’t cut said friend off?
This is the lowest thing I’ve ever heard of.
“iiNet not fast enough for PI
For more than four months, the document states, Herps exchanged emails with iiNet support staff about the slowness of his BitTorrent downloads.
Whoops! We bet those emails were about the first thing iiNet reached for after reading the court documents. Let’s hope they don’t do serious damage.
Investigator turns downloader
Herps is then said to have spent 18 weeks downloading copyright movies as an iiNet customer and in turn making them available through BitTorrent.”
Look people, theres a hole in the statements. The PI is said to have used Bit torrent. This is no problem. The customer could have used bittorrent to share documents related to work or hobbies. BUT did the PI ever said in emails to IINET that HE IS USING Bittorrent to download pirated movies and stuff? A hole in the case.
I have a couple of comments. Why did AFACT address the copyright notice to the wrong person?
Michael Malone is the head of the company. It would be like me reporting the theft of my dog (say – by my neighbour) to the Premier. The Premier would likely read the notice, and ignore it as the ranting of a mad-man. In actual fact the premier would likely not see the notice and his *aide* would ignore the letter out of hand.
No, I would report the theft of my dog to the local police station – the people designated to handle an allegation of this nature.
Similarly, on the iiNet website there is a notice informing the public stating that all copyright infringement notices should be sent to:
* Attention: The Copyright Officer
* Email: Copyright.officer@iinet.net.au
* Fax: (08) 9221 8473
* Mail: Locked Bag 16, Cloisters Square WA 6850
I don’t see Michael Malone’s name any-where in that.
Read the page for yourself:
http://www.iinet.net.au/about/compliance/copyright.html
Secondly, in reply to the article:
“Whoops! We bet those emails were about the first thing iiNet reached for after reading the court documents. Let’s hope they don’t do serious damage.”
I highly doubt that communications about using the BitTorrent protocol would be any cause for concern.
Even if statements like: “I am trying to download movies using bittorrent and it isn’t working” wouldn’t be a cause of concern. There are many many free “movies” on the internet available via BitTorrent. If they specified a movie that was actually copyright, who is to say it wasn’t a trailer for said movie? a fan-movie of the same name? iiNet have terms and conditions specifying that illegal content should not be downloaded, are they to repeatedly question the statements of customers to ensure they conform? Or are they to assume the customer is following the terms and conditions they agreed to and separately the law.
Last I checked, a cop doesn’t pull my car over and when I mention I am in a hurry travelling across the city doesn’t then ask me: “so were you speeding when you did that?? – did you give way to the right? stop at every stop sign?”.
The police officer (rightly) does not assume I am admitting to illegal acts, does not assume that my admission of using the tools available to me (road and car that can speed) is immediate admission of using them illegally. – even when I admit I am in a hurry! A good police officer *may* mention these things: “remember not to speed!” but has absolutely no obligation to do so.
This may be one (of many) orchestrated attempts to get Australians (+ the World), to accept Internet 2?
With Internet 2, Censorship is at its highest!!
Thoughts to ponder…
So, let me get this straight. AFACT authorised somebody to download copyrighted material, the lied to iiNet claiming it was unauthorised, did they? Doesn’t this simply prove that AFACT allegations cannot be trusted to a level needed for anyone to take action?
“Herps is then said to have spent 18 weeks downloading copyright movies as an iiNet customer and in turn making them available through BitTorrent.”
If this statement is correct then Australian Federation Against Copyright Theft has actually condoned the distribution of movies that are the subject of copyright to other third parties by the use of bit torrent (” in turn making them available through BitTorrent.”). If this is true then they have set a precedent of approval. Are they going to have court action taken against themselves?
If AFACT hired the PI to download illegal content, then the PI may be considered authorized (maybe), but then AFACT were in fact breaking the law they were supposed to be enforcing, and should be prosecuting themselves. Government departments are not above the law, and cannot break a law in an attempt to catch somebody else they feel is breaking the same law, or they are just common criminals like the people they are chasing. The only laws that were broken were broken by AFACT and the PI, and they are the people who should be punished, not the ISP. If they knew that the PI was breaking the law, then they are the ones with the responsibility to prosecute the PI, not the ISP. What next, will we be prosecuting phone companies because a terrorist used a mobile phone to detonate a bomb, or a robber used a phone to plan a heist. Not only is it impractical for ISPs to enforce the law, it would be illegal for them to attempt to do so. AFACT should stop trying to fob their impossible task off on other people, and accept responsibility for the problem themselves.
AFACT ..
Tis you to blame ..
Tis you to blame our web being frigged with…
Tis you that convinced me to never buy legal content again…
Tis you that is greedy…
If you cannot modify your business practices to meet todays emerging technologys, you deserve to die a swift death as many others from soo many other industries… if your revenue model (Movie Studios) wasn’t set in 1920′s … this wouldn’t be an issue.
Maybe ressurect Charlie Chaplin and a few others that created the Studio model to begin with…he may have some ideas, you un imaginative, greedy Dogs.
How would iiNET know if any file-sharing is illegal. iiNET would have no knowledge about whether or not the sharers have permission from the copyright holders, and the PI didn’t say anything about his lack of permission. (Probably because he in fact did).
MM just got an additional 15 minutes of free marketing for this rubbish lawsuit. Either Malone is a marketing Genius or AFACT are so stupid to waist money on a PI that was not very well informed on what “IS” an issue that can be challenged.
What they need to do is spend more money on getting artists to produce something other then garbage so people will pay to see what they have instead of downloading a version of iffy quality. Hence the reason why I read these boards instead of watching movies and downloading them. Its a complete waist of time, and in some funny kind of way, is this post!
Why is iiNet being singled out? All this will do is drive customers from iiNet to its competitors who aren’t/won’t be prosecuted, or is that the idea?
If I was an ISP and someone wrote to me and said that they were downloading illegal material via a certain means I wouldnt take it seriously. At the very least I would treat it as a joke. Who would in their right mind turn themselves in. Its like ringing the police and saying “Im currently in iinets office taking money out of the safe. Do you want to come over and check me out?”. AFACT has no FA idea.
The hash values are far from secure and an issue called hash collision and the birthday attack means pretty much all modern hashes are useless. Also bit torrent is a legal method for distibuting content, for example Ubuntu ISO is distributed by bit torrent from the ubuntu mirrors, of which iiNet is one, so a customer talking to iiNet support about bit torrent has nothing to do with piracy it is another means for distributing web 2.0 content, so it is all about the spin they can put on the evidence, which by all reports appears to be hot air.
SO – If I unwittingly downloaded part of a BT file of Herp(e)s during those 18 weeks did I break copyright infringement laws?!?
And this is where “their” case falls down in a hopeless heap. We have a legal system – use it. It’s not for an ISP to terminate services and tell the user they are doing naughties. It is not up to ISP’s to “discipline” users. Is this school? That is up to the “authorities”. There is no law that states an ISP must give browsing histories to movie studies. “Authorities” like the feds can. There are legal avenues in place. The movie studies are basically trying to go around the law, plant a guy as an IInet customer and “make” law as they go. It’s total BS to the max x 1meg
How is an ISP expected to know whether or not a user has the original copies in his library, and is downloading compressed versions for use in portable media players. A perfectly legal practice that is prevented by the studio’s encryption on the retail media.
Its not iiNet that did the wrong thing – charge the investigator with breaking copyright law etc! String him up along with THOSE WHO HIRED HIM!
This is clearly a witch hunt. And a joke. This looks setup mostly by Telstra. Why iinet though? They were one of the first to build their own network and rival telstra for anything decent when it came to broadband.
If the e-mail’s he exchanged with iiNet weren’t about illegal content then this means nothing. BitTorrent is not an illegal application and is used for legitimate purposes.
Well, I think a big congratulations to AFACT.
They obviously didnt know what peer-to-peer was all about so they sent in an investigator to learn and show them how..
Now they have brought it to light some 18 months later (they got it quick) and are soo impressed that they could pay these people to provide an internet enabled network, and how simple the is to use, they do their bit and share round some files. Well done . (At least iiNet are doing their job here)
Does that mean those files are now legal for download? Along with the vast array of other legal content being shared? Can I get a copy? (So its not the developers in the wrong then)
That kinda leaves the the end user (in this case, the Dick doing the investigating (they are known as Dicks arent they??). Dick paid for the network, Dick downloaded the illegal content and Dick was probably being monitored for a while _after_, only after, AFACT made them aware of the ghastly crime, and I suspect nothing conclusive really came from it. (again iiNet are doing their job)
Dicks sole goal was to prove the concept and well done, you did.
Along the way you’ve now managed to advertise to the 20% of Internet users who didnt know how to download stuff easily, exactly how they go about it. Sort of condoning it I guess. Another pat on the back AFACT.
So I almost leave with the question, who is really to blame here?
-the ISP
-the developer
-the end-user (in this case the Dick. who is allowed to do something normally illegal to prove it can be done)
Didnt your buddies at Telstra want to show you how to do it?
Boo Hoo.
I think what AFACT and every other stupid agency are missing is that people that download… weren’t going to EVER buy the copyrighted item in question…I don’t see anything different with downlaoding an album as opposed to hearing the songs on radio, recording them… are they going to also prosecute those that record radio?
Greed for Money is ruining the world…
The long and the short of it?
Even if you have documentary evidence (ip’s, hash numbers, film…) and forward it to the ISP, they are (perhaps should, we know these lampreys f#ck the law up for everyone) under no obligation to act upon it.
That is the role of LAW ENFORCEMENT.
In Herps case, he is an authorised downloader (acting on orders from AFACT) and disconnecting him would technically be without cause… He was masquerading as a lawbreaker, but when the case was forwarded to the police, AFACT (of course) didn’t follow up because he’s there guy.
You know what happens if I make a false complaint to the police? I get charged with a crime (essentially I waste their time chasing a fallacy). If these lunatic fringe dwellers have such compelling evidence including evidence that the police could not get without a warrant/subpoena, then why don’t they present it or just sue the person infringing?
So, WHY IS THIS HERP GUY NOT BEING PUNISHED!!! HE DOWNLOADED ILLEGAL CONTENT WHO CARES IF HE USED THAT AGAINST IINET — HE STILL DOWNLOADED ILLEGAL CONTENT AND THAT SHOULD BE PUNISHED!!!!
I think AFACT i full of garbage, and have not kept up with the times, why cannot they make legal content even if they charge a bit for available for download, instead of this hog wash with iinet.
So people can burn it to disc. These half a brain idiots could make it a lot cheaper, no expensive discs, cases and covers for the movies. AFACT get a life, and stop wasting everyones time.
Entrapment is quite illegal in this country the last time I looked. Some times I wonder if places like Telstra are on AFACT’s side and enaiding them, to stop out the competition.
In this country its not illegal to be a customer and provide evidence.. so entrapment isnt an issue here…
One other thing why telstra hasnt copped anything like this, is because they offer income for movies and music via the bigpond site..
I somehow dont think they would want to jepodise that, as telstra has marketed it very well and lots of people use this service to rent movies and buy music..
But honestly, going after one company like this is pretty tasteless..
Im with Telstra and have been with Optus.. never once got a warning letter, phone call.. or any other formal notice..
So i dont think its just iinet doing this..
Anyways my 2 cents
So does this now mean that ISP’s will be held accountable for people downloading child pornography? Surely, they would be seen to have the same level of responsibility to ensure their customers aren’t downloading or sharing this material?
Or perhaps we could hold them responsible for allowing children to access 18+ sites. They should know better than to allow my children to access these sites when they are on the web.
Or perhaps I could sue my ex-boyfriends ISP for allowing him to send a threatening email to me?
If anyone ever hacks my bank account, I will be sure to sue their ISP for allowing them to do it.
TAKE A LOOK AT THE REAL WORLD! This is ridiculous, how can AFACT be allowed to do this??
There is no point making a specticle of iiNet for allowing illegal content sharing. And if the courts condone this then they will have to go after the 100% share of the market place – and for allowing ALL illegal activities, not just content sharing, to make anyone really take notice.
This kind of ‘crap’ just makes me want to take a few weeks holiday from work and download as much content illegally as I can. Just to stick it to them!
There are sites where you can torrent legally these days right? (i.e. pay money for them) $10 says the PI didn’t specify they were illegal downloads and therefore wont hold up in court…
AFACT are a corporate identity, pretending they are the law… trying to get other corporate identities trying to act like the law. iinet were right to pass the info to the Police, if it is legally prosecutable it will be prosecutable – they aren’t going to go after everyone who has an illegal MP3 on their computer. It will tie up the courts!!!! What they should be tracking down is corporate pirates – but they hit individuals with “three strikes, and your account is cancelled”. Everyone who torrents should be viewed as a potential customer is how these corporations should look at things, as the quality is poor to good on most downloadable things (not that I have done it!), and you purchase after you view the COMPLETE product. Not just a taste, as that can be very disappointing…