Tuesday 24 April 2012, 11:54 | By

Australian movie industry fails to force ISP to act on piracy

Digital Legal Top Stories

AFACT

The Australian movie industry’s long running bid to force internet service providers in the country to act against file-sharing has failed, after a second appeal hearing ruled against it.

As previously reported, Aussie film and TV industry group AFACT began legal proceedings against ISP iiNet in 2008, arguing that the net firm knew some of its customers were accessing illegal sources of content via its servers, but did nothing to stop it, and that, under Australian copyright law, that amounted to so called authorising infringement.

Had AFACT won the legal fight, the ruling would have forced iiNet to routinely monitor the activity of its customers, and to put blocks in place to limit the accessing and sharing of unlicensed files. Quite how that would work isn’t clear, but that isn’t relevant anyway because at all stages the courts ruled against the movie industry body. Judges found in favour of iiNet at first instance in 2010, on appeal in 2011, and last week at Australia’s High Court, the last route of appeal for the anti-piracy organisation.

Authorising infringement is a similar concept to contributory infringement, that wider concept having been used to hold various file-sharing technology providers around the world liable for the infringement their services enable, even though they themselves do not get involved in distributing unlicensed content.

However, ISPs have generally been immune to authorising/contributory infringement claims, partly because in the US the Digital Millennium Copyright Act specifically protects them, while in Europe they can claim protection from certain bits of European Union law. But in Australia no such explicit protection exists, hence this being a test case.

Though with the precedent set in all three stages of this lawsuit, it’s now pretty clear that Australian ISPs do not have obligations in this domain – and at the final appeal hearing in the Australian High Court last week, all five judges ruled in the net firm’s favour. Distinguishing that opinion from the Kazaa case (the one P2P legal action that was successfully pursued under Australian law) the judgement said that, unlike the providers of P2P services, iiNet had “no direct technical power to prevent its customers from using the BitTorrent system” to infringe copyright.

Needless to say, iiNet welcomed the ruling, with its CEO Michael Malone telling reporters: “iiNet has never supported or encouraged unauthorised sharing or file downloading. [But] increasing the availability of licensed digital content is the best, most practical approach to meet consumer demand and protect copyright. We have consistently said we are eager to work with the studios to make their very desirable material legitimately available to a waiting customer base – and that offer remains the same today”.

Although a movie industry case, the final ruling in the AFACT lawsuit will further motivate both the film and music industries in Australia to push for some sort of three-strike system to be introduced in the country, as in France and neighbouring New Zealand (and technically in the UK, though the system is yet to go live), so that while ISPs may not be forced to monitor their users’ activities, they will be forced to send out warning letters to those customers rights owners suspect of accessing illegal content.

With that in mind, AFACT MD Neil Gane told reporters: “Now that we have taken this issue to the highest court in the land, it is time for government to act. We are confident the government would not want copyright infringement to go on unabated across Australian networks especially with the rollout of the NBN [National Broadband Network]”.

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