Copyright cage match ends
April 19, 2012 10:17 PM Subscribe
The High Court has handed down its decision in the case of Roadshow Films Pty Ltd v iiNet Ltd (summary [PDF]; full text of judgment; some analysis), finding 5-0 that ISP iiNet did not authorise its users to infringe the copyrights of members of the Australian Federation Against Copyright Theft (AFACT) by making films available over BitTorrent.
In the words of the concurring judgement of Gummow and Hayne JJ:
What now for Australian copyright law? The Commonwealth Attorney-General's Department has been holding secret meetings between ISPs and (some) copyright-holders to work out a compromise, but these have been criticised as "offensive" by Greens Senator Scott Ludlam and don't seem to have accomplished much anyway. An Australian Law Reform Commission inquiry into exceptions to copyright has been announced, but the draft terms of reference [PDF] seem to exclude peer-to-peer communications.
For more (intense) details, here's iiNet's history of the case and some information, via Wikileaks, about the role of the Motion Picture Association of America in the case.
In the words of the concurring judgement of Gummow and Hayne JJ:
iiNet only in an attenuated sense had power to "control" the primary infringements utilising BitTorrent. It was not unreasonable for iiNet to take the view that it need not act upon the incomplete allegations of primary infringements in the AFACT Notices without further investigation which it should not be required itself to undertake, at its peril of committing secondary infringement.This decision brings an end to the extended litigation, which had previously been decided in favour of iiNet in the Federal Court and the Full Federal Court. Costs, awarded against the plaintiffs, are likely to be substantial with iiNet having spent around $9 million on the case.
What now for Australian copyright law? The Commonwealth Attorney-General's Department has been holding secret meetings between ISPs and (some) copyright-holders to work out a compromise, but these have been criticised as "offensive" by Greens Senator Scott Ludlam and don't seem to have accomplished much anyway. An Australian Law Reform Commission inquiry into exceptions to copyright has been announced, but the draft terms of reference [PDF] seem to exclude peer-to-peer communications.
For more (intense) details, here's iiNet's history of the case and some information, via Wikileaks, about the role of the Motion Picture Association of America in the case.
Hooray! Sanity. And Roadshow will get spanked with a nice big costs bill, for trying to force ISP to be the copyright police.
posted by His thoughts were red thoughts at 10:22 PM on April 19, 2012 [2 favorites]
posted by His thoughts were red thoughts at 10:22 PM on April 19, 2012 [2 favorites]
This will probably get completely steamrolled by the negotiations for the Trans-Pacific Partnership Agreement (AKA the bend over everyone, here come the US corporate interests Agreement).
Quite possibly. But since that agreement is being negotiated in secret, it's unlikely that we'll know until the relevant laws are enacted.
posted by His thoughts were red thoughts at 10:23 PM on April 19, 2012
Quite possibly. But since that agreement is being negotiated in secret, it's unlikely that we'll know until the relevant laws are enacted.
posted by His thoughts were red thoughts at 10:23 PM on April 19, 2012
Para 75 of the judgement is the key. Basically, AFACT would be asking iiNet to act illegally.
posted by wilful at 10:24 PM on April 19, 2012
posted by wilful at 10:24 PM on April 19, 2012
The court also found (for the 50 millionth time) that providing a service that can potentially be used for an unlawful purpose =/= authorising the unlawful purpose; "The progression urged by the appellants from the evidence, to "indifference", to "countenancing", and so to "authorisation", is too long a march."
Frankly, I don't know why this got to the HCA in the first place. This is well worn ground.
posted by His thoughts were red thoughts at 10:29 PM on April 19, 2012
Frankly, I don't know why this got to the HCA in the first place. This is well worn ground.
posted by His thoughts were red thoughts at 10:29 PM on April 19, 2012
Good on ya iiNet. You've kept this household's business.
And fuck secret government negotiations with industry lobby groups. Any industry, any reason, any time. If something is important enough to have legislation deal with it, it's important enough to go through an open and transparent public consultation process before any negotiations with interested parties or drafting of legislation commences. Anything but is just straightforward corruption.
posted by Ahab at 10:32 PM on April 19, 2012 [8 favorites]
And fuck secret government negotiations with industry lobby groups. Any industry, any reason, any time. If something is important enough to have legislation deal with it, it's important enough to go through an open and transparent public consultation process before any negotiations with interested parties or drafting of legislation commences. Anything but is just straightforward corruption.
posted by Ahab at 10:32 PM on April 19, 2012 [8 favorites]
Wilful, I fear you are right: the Court is basically telling the Government to sort it out via legislation.
Paragraph 79: This final conclusion shows that the concept and the principles of the statutory tort of authorisation of copyright infringement are not readily suited to enforcing the rights of copyright owners in respect of widespread infringements occasioned by peer-to-peer file sharing, as occurs with the BitTorrent system. 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[84], 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.
posted by kithrater at 11:14 PM on April 19, 2012
Paragraph 79: This final conclusion shows that the concept and the principles of the statutory tort of authorisation of copyright infringement are not readily suited to enforcing the rights of copyright owners in respect of widespread infringements occasioned by peer-to-peer file sharing, as occurs with the BitTorrent system. 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[84], 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.
posted by kithrater at 11:14 PM on April 19, 2012
The court also found (for the 50 millionth time) that providing a service that can potentially be used for an unlawful purpose =/= authorising the unlawful purpose; "The progression urged by the appellants from the evidence, to "indifference", to "countenancing", and so to "authorisation", is too long a march."
Frankly, I don't know why this got to the HCA in the first place. This is well worn ground.
What? It's just like when Ford authorises all those getaway cars. Hamburger.
posted by jaduncan at 5:59 AM on April 20, 2012
Frankly, I don't know why this got to the HCA in the first place. This is well worn ground.
What? It's just like when Ford authorises all those getaway cars. Hamburger.
posted by jaduncan at 5:59 AM on April 20, 2012
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This will probably get completely steamrolled by the negotiations for the Trans-Pacific Partnership Agreement (AKA the bend over everyone, here come the US corporate interests Agreement).
posted by wilful at 10:20 PM on April 19, 2012 [1 favorite]