Post by trog @ 10:28am 20/04/12 | 21 Comments
Fresh from the High Court of Australia comes news that the trial against iiNet has been dismissed. The official statement from the High Court is now available online:
The High Court unanimously dismissed the appeal. 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. For these reasons, the Court held that it could not be inferred from iiNet's inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants' films by its customers.For those interested in the gory details, the full judgment is also available online.
Clearly great news for iiNet, but good news for Australian Internet users because it has reinforced the line that media companies cannot simply do whatever they want without going through the appropriate processes.
Friend of the show Nic Suzor, a post-doctoral researcher and lecturer at the Queensland University of Technology School of Law has written a much more in-depth analysis, from which he's very kindly provided us with the following summary.
This morning the High Court of Australia unanimously ruled that iiNet did not authorise the infringement of copyright by its users.
The dubiously-named "Australian Federation Against Copyright Theft" (AFACT) sent iiNet notices alleging that its users were infringing the copyrights of its members by downloading and uploading movies using BitTorrent. AFACT then argued that iiNet had a responsibility to do something to prevent further infringements by its users. In a unanimous judgement, the High Court ruled that iiNet had no positive duty to disconnect users.
This is a strong, unanimous judgement that clearly limits the scope of authorisation liability and the responsibilities of intermediaries in Australia. The High Court rejected AFACTs attempt to extend the concept of copyright liability to those companies who play some role in providing access but otherwise do very little to encourage copyright infringement.
Importantly, the High Court found that the only thing iiNet could do to prevent infringement would be to terminate its users' ISP access completely - and that was a power that would go far beyond what would be reasonable. The High Court explained that an obligation to terminate would not be particularly effective (since infringers could get new ISPs) and would be risky and uncertain (since the allegations provided by AFACT are difficult to verify).
This is an important win for Australian ISPs. It puts ISPs in a much stronger position when dealing with copyright owners - the certainty it provides means that Australian ISPs are less likely to bow to pressure to introduce private notice & notice schemes or even three-strikes termination schemes (like the ones introduced in the US). Unfortunately, this means that the large copyright owners will now likely seek legislative change to make ISPs take a more active role in policing infringement, in a similar way to efforts to introduce three-strikes regimes in the UK and NZ.