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Feb 4, 2010

iiTrial: ISPs not responsible for users' copyright infringement

A landmark ruling in Australia's Federal Court today has cleared internet service provider iiNet from responsibility for its users' illegal file sharing.

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“I find that iiNet did not authorise the infringements of copyright of the iiNet users.”

That’s the key sentence in Justice Dennis Cowdroy’s 636-paragraph ruling handed down in Federal Court 18C in Sydney this morning.

Film industry claims that iiNet, Australia’s third-largest internet service provider, was responsible for its users’ illegal file sharing were dismissed.

Justice Cowdroy also provided one of the clearest legal statements ever of an ISP’s role:

An ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright. It is only by means of the application of the BitTorrent system that copyright infringements are enabled, although it must be recognised that the BitTorrent system can be used for legitimate purposes as well. iiNet is not responsible if an iiNet user chooses to make use of that system to bring about copyright infringement.

Justice Cowdroy acknowledged the widespread public interest in the trial both in Australia and abroad, believing it to be the first trial of its kind to proceed to hearing and judgement. As Crikey has previous explained, this case has global importance.

“I understand this is the first Australian trial to be twittered or tweeted,” Justice Cowdroy said. “It seems rather fitting for a copyright trial involving the internet.”

The case was initiated by 34 applicants, a Who’s Who of film production including Roadshow, Walt Disney, Paramount, Sony, Twentieth Century Fox, Universal and Warner Bros.

Yet the key player in court was the Australian Federation Against Copyright Theft (AFACT), which says it represents “the 50,000 Australians directly impacted by copyright theft”. That number includes everyone down to the cinema popcorn-sellers and the staff at your local video shop.

“The exact nature of the relationship between the applicants and AFACT is not clear,” Justice Cowdroy noted. However AFACT played a central role in collecting evidence. They employed DtecNet to become an iiNet customer and identify the internet addresses of other customers offering copyrighted material.

Justice Cowdroy agreed that copyright infringement was taking place, although in smaller numbers than alleged. Each user offering a film available through BitTorrent was infringing copyright just once, not once for every time another user downloaded the film.

Nevertheless he ruled that iiNet was not authorising the copyright infringement for three reasons:

first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.

Justice Cowdroy rejected iiNet’s argument that the privacy provisions the Telecommunications Act would prevent them from acting on AFACT’s notices of infringement.

He also ruled that iiNet’s repeat infringer policy was reasonably implemented, so they would have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act rendering them immune from prosecution.

“The law recognises no positive obligation on any person to protect the copyright of another,” Justice Cowdroy said. “The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts.”

AFACT executive director Neil Gane said this morning it was too early to say whether they would appeal against the decision.

Both the Internet Industry Association and the Internet Society of Australia have welcomed the decision.

Disclosure: Stilgherrian is a customer of iiNet, as well as Telstra and Virgin Mobile. He has not communicated with iiNet about this case, nor they with him.

13 comments

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13 thoughts on “iiTrial: ISPs not responsible for users’ copyright infringement

  1. Tom McLoughlin

    I’ve been trying to run a common sense ruler over this outcome: Put it in a physical metaphorical context for instance. And it results the same as the judge above. For example:

    Local council creates a public sports venue with no alcohol signage (think no illegal downloading). All kinds of activities are legal and acceptable. The rowdies get in late at night and booze up, chuck bottles around smash glass and make a bloody nuisance of themselves.

    Soooo … is the local council (think ISP), fully aware of the rowdies abusing the public open space acting illegally for failing to prevent the illegal drinking, now also acting illegally for the open gate at the sports ground? Doesn’t ring true to me. Sure as a matter of politics they might be pressured into locking the gates at night, or hiring security guards or getting change in legislation to impound their cars. But the illegality surely is the direct perpetrator. It’s a political not legal issue for the venue operator, and government, with potential of legislation intervening depending how strong the complaints get over the abuse.

    ……………………………

    Can we assume as a matter of industry sector lobbying future domestic or international treaty laws on ISPs in the future to tackle illegal downloading expanding the legal duty?

  2. Stilgherrian

    The movie and music industry globally has for some time been lobbying heavily for governments to introduce three-strikes-and-you’re-our laws, which would force ISPs to disconnect repeat offenders.

  3. Sean Carmody

    Tom: if I lived across the road from that sports venue and was being kept awake at night, I’d be calling the police not the council.

  4. Leon Arundell

    AFACT could improve its credibility by providing more reliable information.
    It’s quite legal to download a movie whose copyright has expired, but I was unable to find any information on this from the AFACT website.
    And the contact email address on their website generates an “Unelivered Mail” message!

  5. scottyea

    The case was a ludicrous attempt to stifle progress. When you have a means of distributing property that is so easy, instantaneous and accessible, the answer to the problem of protecting the property at risk is not to choke technological advancement to preserve your existing model – the answer is to grow yourself, oh yeah, and especially to grow out of making such pathetic movies. Hollywood sucks.

  6. ggm

    If I were part of the big-5 IPR holders worldwide I think I’d be meeting in smoke filled rooms to see how hard I could push ACTA and 3-strikes.

    Since Australia caved on a large part of the US IPR rules for freemarket rights (which basically, we got shafted on. I mean, the value of the leather seat cover business exporting to the USA is really not ‘it’ these days, and they seem to prefer not to have terminals capable of handling our gas, even if they could afford to buy it) the suspicion would be.. that we’d cave.

    We caved on circumvention devices didn’t we?

    And the word is that Obama filled Justice with Hollywood friendly lawyers as payback on the boost he got from the pretty faces, so you’d expect this to get a good foothold in DoC facing Australia if it requires a strongarm tactic to get up..

    ie, “won the battle, lost the war” is always possible.

    -G

  7. Robert Corr

    I’ve put together a few highlights from the judgment. The way his Honour characterises AFACT’s behaviour can not be more stark than when it is set against his comments about iiNet’s Michael Malone.

  8. Liz45

    Isn’t capitalism wonderful? Those who lost out on this Judgement want to make money when they make the movie, and then want to keep on making it forever? If they win the proposed appeal, will this mean, that Internet Providers not even make movies etc available to web users? Then what? How far could it go? Would the ABC want to charge users for downloading last night’s 7.30 Report, or the News?? There’s an available site where people can download certain documentaries for free? When will the movie makers etc be satisfied with the millions they make from the box office? Never? If I’m not responsible for what people do in my local park that is available to all, why should internet service providers be responsible for those who download movies, music etc? It doesn’t make any sense to me?

  9. scottyea

    It was a ridiculous attempt – to make ISP’s into ISPolice. at least iiNet got costs. I hope they got a *lot* of good publicity from it.
    I mean, the dude started it from his parents’ garage and now its Australia’s third biggest ISP.
    And hollywood targetted him.
    Kinda fitting in a way, as it helps explain why their movies are so pathetic…

  10. John

    Little people, albeit including some freetards: 1
    Greedy multinationals: 0

    I’ve met Mr Malone, and what a gentleman he is.
    Hoorah!

  11. Tom McLoughlin

    @ Sean Carmody, and author Stilg…

    Calling the police (in this thought experiment context re a council venue) might be some kind of Intellectual Property ‘police’ of some kind. If memory serves the ACCC (?) has a jurisdiction on market stalls selling knockoff breach of trademark items and they do irregular raids on that. Not sure ACCC get into web 2.0 illegal downloads at all. Is this ACMA? And do they have capacity?

    Assuming their is no civil law IP police to call (absent a criminal offence making it regular POlice say because it’s fraud on the copyright owner?) hence the civil law case result here, as the resident over the road, then it does become a political issue because neither police or council will deal with it.

    My example is direct from local councillor experience where the local MP Peter Debnam MP saw the PR opportunity around hoon cars and gangs and promoted impounding legislation of the cars. And this was generally acknowledged as a real perhaps limited deterrent.

    I wonder what folks who had their prize technology impounded and sold off would feel like. Or even blacklist from web subscription – at least in their own name – a bit like cancelling driving (web surfer) license?

  12. Tom McLoughlin

    …err IP meaning Intellectual Property eg copyright like trademarks. As distinct from IP address dna of a computer.

  13. Stilgherrian

    The police analogy starts to get tricky because some acts of copyright infringement are crimes and some are not. I can’t recall the precise definition. But at each end of the scale, obviously the duplication of DVDs in large numbers for profit is definitely a crime, and sharing a file once across the internet for no monetary gain or other consideration is not.

    In a piece for Crikey today, I mention that Justice Cowdroy did call out AFACT for deliberately blurring those boundaries in, amongst other things, their very name. T for Theft.

    Of course Justice Cowdroy was ruling on the law as it is, not as AFACT would like it to be, or iiNet or you or me or anyone else. He did note the apparent scale of infringement, implying that clearly this is a problem that needs sorting out — but that the law indicated that ISPs acting as copyright police on the basis of allegation is not on.

https://www.crikey.com.au/2010/02/04/iitrial-isps-not-responsible-for-users-copyright-infringement/ == https://www.crikey.com.au/free-trial/==https://www.crikey.com.au/subscribe/

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