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Apr 20, 2012

AFACT's appeal against iiNet decision dismissed

Internet service provider iiNet just won its long-running legal battle against the massed forces of Hollywood, but there's some gotchas buried in the High Court decision.

The phones must be running hot in Attorney-General Nicola Roxon’s and Communication Minister Stephen Conroy’s offices this afternoon. Internet service provider iiNet just won its long-running legal battle against the massed forces of Hollywood, but there’s some gotchas buried in the High Court decision.

The #iiTrial, officially Roadshow Films & others v iiNet Limited, kicked off in the Federal Court in 2009 when 34 Australian and US film and TV copyright-holders alleged that iiNet was “authorising” (in the technical legal sense) the copyright-infringing actions of its customers by failing to act on the complaints they’d filed. The case was informally called AFACT v iiNet after the industry lobby, the Australian Federation Against Copyright Theft.

iiNet enjoyed a comprehensive win in February 2010, and won the Full Federal Court appeal (kinda) in February 2011.

This High Court appeal being unanimously dismissed makes it a three-nil win for the ISP, as the summary of the judgement explains.

“The court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films. Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts.”

But as the court’s full decision makes clear in paragraph five, the key question in this appeal, whether iiNet authorised its customers’ copyright-infringing acts, “depends upon all the facts of the case”. That is, things might have turned out differently had AFACT or iiNet handled things differently. We’ll never know.

The court also provides some less-than-subtle hints that the government might wish to have a look at this.

When first enacted in 1968, the Copyright Act ran for around 100 pages. But by 2007 it was more than five times the size, what with changes needed for the US Free Trade Agreement as well as massive technological changes. In paragraph 120:

“The history of the Act since 1968 shows that the Parliament is more responsive to pressures for change to accommodate new circumstances than in the past. Those pressures are best resolved by legislative processes rather than by any extreme exercise in statutory interpretation by judicial decisions.”

It’s easy to imagine the government listening with sympathy once more to the poor, struggling copyright industries. Only today the PM announced a $12.8 million bribe, sorry, gift to the producers of The Wolverine. That certainly “sends a message”, as the phrase goes, no?

More ominously, from the internet industry’s point of view, is this from paragraph 79:

“The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes, some of which incorporate co-operative industry protocols, some of which require judicial involvement in the termination of internet accounts, and some of which provide for the sharing of enforcement costs between ISPs and copyright owners.”

We’re talking the so-called “graduated response” and “three-strikes” laws such as those already enacted very close to home in New Zealand.

A handful of countries have said such laws are unconstitutional. Internet access is now such a fundamental part of society that access is a human right. Cutting off a household to punish one transgressor is unreasonable. But of course that freedom to communicate human right thing ain’t so strongly legislated here in Australia.

As deadline approaches the legal experts are still perusing the decision and discussing it — via Twitter, of course.

“Well, on a first reading, the #iitrial judgment looks like a genuine win, and, as @rgibli predicted, a retreat from the FFC’s [Full Federal Court’s] views,” tweeted Kimberlee Weatherall, associate professor at the University of Sydney’s law school.

“The finding that the power to terminate subscribers was indirect only is a retreat from FFC’s view that termination could be reasonable,” she added.

Peter Black, who teaches internet law at the Queensland University of Technology, agreed. “It does indeed — it is most encouraging. But it also just means that the battle shifts squarely to law reform and the development of an industry protocol,” he tweeted.

As the High Court said in paragraph 77:

“The appellants’ submission … assumes obligations on the part of an ISP which the Copyright Act does not impose.”

So let’s just change the Copyright Act, right? Stand by.

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37 comments

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37 thoughts on “AFACT’s appeal against iiNet decision dismissed

  1. Meski

    So let’s just change the Copyright Act, right? Stand by.

    ANd lets see it fall over in a relatively unfriendly lower and upper house. You think Abbott will support anything Labor proposes? You think Wilkie will support it after Labor gutted his pokie reform? You think the Greens in the upper house will support it?

    No, AFACT, you can’t haz cheezburger.

  2. Michael Wilbur-Ham (MWH)

    The popular perception is that Labor and Liberal are in constant conflict.

    But most legislation is passed with both major parties and The Greens supporting it. Not surprisingly, it is only the legislation which Labor wants and Liberals are against which makes the MSM.

    Sometimes Liberal and Labor both support something which the Greens are against. An important recently example is the changes to our extradition laws which make it easier for our government to send an Australian overseas for trial when the alleged crime has been committed in Australia. Surprise, surprise, this has got almost no coverage in the MSM.

    Unfortunately copyright law is something where both Liberal and Labor tend to strongly favour big business (our current laws are already tougher than the USA laws). I would not be surprised if the tag-team coalition of Liberal and Labor combined to further toughen our Australian laws. The Green’s opposing views will be ignored by the MSM, and the legislation will pass without most people knowing about it.

    I will not be surprised if in a few years time our laws are so tough, and there is active policing and prosecution, to the extent that we will be one of the only countries in the world where there is very little downloading of pirated movies.

    This should have been taken into account when calculating user demand for the NBN 🙂

  3. Meski

    @MWH: A good point, but Abbott might want to wait and take the credit.

    Think I want a bumpersticker that reads

    “I voted for an NBN, and I will vote against any party that supports AFACT”

    Just checking pricing on cafepress…

  4. Stilgherrian

    Senator Conroy has usually said that he’s sure the two industries should be able to work out something between them — with the veiled threat that if they don’t then he well and they’d likely both be unhappy.

    There’s lots of talk coming from both sides this afternoon. And that’s even before beer o’clock.

    Stand, as I say, by.

  5. Clytie

    I wouldn’t worry about adequate use of the NBN. Either we get a decent Netflix/Hulu provider, or people will still find a way to get movies and TV shows we currently aren’t allowed to access in a timely manner, or at all.

    This also applies to ebooks: remove geographic limitations, and get Hachette and HarperCollins to reverse their pre-Christmas 2011 decision to double ebook prices for Australians, and you have a working market. Maintain those unreasonable barriers, and watch people leave the market and find their own material. (I, personally, am so sick of having to write to authors and tell them I’m not allowed to buy their ebooks.)

    As Malone said in the ABC news article today, the best way to reduce content piracy is to provide timely and accessible legal content. For example, Baen Books have a Free Library of older titles and they sell all titles DRM-free: Baen have some of the top SF, fantasy and military authors but are rarely pirated.

    Did anyone else see the news on the French three-strikes law? They did a study on its results. Piracy was down by 60%, and sales … continued to fall.

    So, we invest a lot of taxpayer money in further restricting human rights in our country, criminalize downloading a 99c song, prosecute some hapless kids and bankrupt or imprison them, and the copyright industry will continue to lose money, not because its audience is dishonest, but because it has some seriously inefficient practices. Amid all the talk about productivity, you’d think these guys would try to improve access to their material, not waste time and money locking it away from willing customers.

  6. JamesH

    The link to the summary of the judgement in paragraph 4 is a link to a (presumably unrelated) murder case appeal about DNA evidence.

  7. Meski

    @STILGHERRIAN: Perhaps for a change, he’ll make the taxpayers/citizens/**VOTERS** happy.

  8. littlemaths

    @ME SKI: You must be thinking of a different Stephen Conroy.

  9. Michael de Angelos

    So many are in the thrall of the internet which is operates . People, particularly tech writers and journalists promote the idea that Google, Facebook. twitter and the rest are God like entities rather than what they are : rapacious profit making corporations that are in conflict with other profit making corporations-the content providers like Hollywood.

    I’ve seen crikey writers object to the idea that Twitter should somehow censor libelous comments before they are twittered- despite it being an imposition that normal print publishers must do to avoid law suits.

    And Google , Twitter etc employ a mere few thousand world-wide whereas as I previously pointed out, the Stasi once employed 250,000 agents to compile the same information.

    I’ve even seen on crikey, BK imply that because a billionaire like Zuckerberg outrageously declares privacy is over, therefore it is. Boll**cks.

    Legislation will need to take care of those who infringe copyright and risk ruining it for everyone. Abbott will comply or be ruined by forces greater than he.

  10. Meski

    @LittleMath: Well, maybe. He is in charge of rolling out the NBN, I grant him an indulgence for that.

    @Michael: re Twitter and libel (or slander) – where’s the jurisdiction supposed to be? Print publishers are rather well defined in terms of location. Twitter? I’m not saying libel is to be ignored, but it requires some worldwide, rather than country or state boundaries.

    It wasn’t Zuckerberg, (he probably stole the saying) but Scott McNealy, chairman of Sun Microsystems, who in 1999 said, “You have zero privacy anyway. Get over it.” Scott was making an observation, but Zuckerberg is the one who liked the taste of it.

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