iiNet Case: Why the ‘judge, jury and executioner’ argument is wrong
iiNet and many of its supporters argue that the company cannot terminate users on the basis of mere allegations, and can’t play ‘judge, jury and executioner’.
Nice try, but legally misses the point of the Copyright Act.
How the Copyright Act works
If an ISP provides access that can be used to breach copyright, and there’s a credible allegation that users are actually used it for that purpose, the ISP has a choice.
It does not have to accept the allegations. It does not have to play ‘judge, jury and executioner’. It does not have to do anything. That’s a choice open to it. In effect, the ISP is saying ‘We back our users. We’re on their side. We aren’t prepared to judge them.’ Three cheers for that.
The risk that the ISP then voluntarily accepts is that the allegations may be true, and if they are, that they may be deemed by the law to have joined in the breaches. That’s a voluntary risk the ISP decides to take, with its eyes wide open.
So nobody forces an ISP to judge its customers. But if an ISP actively chooses not to, it may find that being ‘on the customer’s side’ involves more than it bargained for.
Comments
4 Responses to “iiNet Case: Why the ‘judge, jury and executioner’ argument is wrong”
Leave a Reply
It’s not that they being asked to be the judge as it fact they are being asked to be the executioner.
The issue is the party being the judge and jury is not an entity that is legally authorise to be a judge and jury, as far as I know in Australian law.
This is a complete crock. It is a lose-lose situation for iinet. If they act on the unproven allegations and cut off the customer, the customer can go to the TIO and complain about it. The TIO will then investigate the matter and rack up a big bill which iinet must pay.
On the other hand, if iinet do not cut off the customer, they will get sued by the studios for ‘supporting’ criminals.
Is there any way iinet could have won this arguement?
Right…
Whatever happened to this post mentioning the Common Carrier principle and provisions in the copyright code?
Support for the users? Yeah… since they gave the details over to the police instead of ignoring them. Don’t think so, amigo.
Let’s forget about this case being the defense of a broken ogliopolistic industry, and downloading being a reaction.. beyond that, this case is crock.
iiNet has said that it passed on the allegations and supplied evidence to the police. That does not sound like the actions of someone just ignoring the problem. If the police did not act upon it then you surely you cannot sue iiNet. Village should be complaining or suing the police.