Quickhit: iiSmackdown: Roadshow, Disney, Paramount, Sony, 20thC Fox, Universal, Dreamworks, Warner Bros, and friends to pay costs

Stilgherrian writes at Crikey: iiTrial: ISPs not responsible for users’ copyright infringement

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

“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 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.”


Delimiter: Judge: iiNet did not authorise infringement

SMH: Twitter puts iinet trial news into real time

#iitrial live on Twitter

Delimiter: Video: iiNet and AFACT face the media

The full judgement at Austlii: Roadshow Films Pty Ltd v iiNet Limited (includes summary) (No. 3) [2010] FCA 24 (4 February 2010)

A couple of excerpts from the judgement:

14. Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result. […]

19. The result of this proceeding will disappoint the applicants. The evidence establishes that copyright infringement of the applicants’ films is occurring on a large scale, and I infer that such infringements are occurring worldwide. However, such fact does not necessitate or compel, and can never necessitate or compel, a finding of authorisation, merely because it is felt that ‘something must be done’ to stop the infringements. 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.

20. The law recognises no positive obligation on any person to protect the copyright of another. 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. In the circumstances outlined above and discussed in greater detail in my judgment, it is impossible to conclude that iiNet has authorised copyright infringement.

Categories: law & order, technology

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5 replies

  1. AFACT thought they could get a relatively small ISP to capitulate and set a precedent in their favour. Thankfully iiNet acted on principle despite the risk.
    With this plus their stance on the clean-feed, I’m happy to be an iiNet customer right now.

  2. The American companies can still appeal to the High Court and its a tossup as to what Howard’s conservative appointees will rule

  3. Do you see iinet as relatively small, Sam? They’re the third-largest ISP in Australia.

  4. It was just code for “someone besides Telstra”.

  5. Sam: when you want to set legal precedent, it’s FAR better to do it with someone who is going to take the matter all the way: if you settle, it’s not a binding precedent by a long shot (although it might be something if a psychological precedent, in that if you get a few people to settle, others might start to follow).
    Elisabeth Marie Alice Victoria: our High Court is nowhere near as political as SCOTUS. Not even in constitutional cases; not even when the government is a party. Sure, there are no particularly “activist” members on the current court (the way the term “activist judge” is normally used, which I have quibbles with, but that’s a matter for another day 🙂 ), but (1) activist vs conservative (in terms of judges) =/= politics (and certainly not party politics); and (2) there’s very little in the way of a trend in relation to any member of the current Court consistently finding either in favour of government or in favour of big corporations.
    In particular, there’s no observable trend based on which government judges are appointed by – and there is much less politics in the appointment of judges. Kiefel J, for example, has been appointed to courts by governments of both ilks.
    In any case, based on the above extracts & summary, I’d actually say that Cowdroy’s decision was fairly conservative, from the point of view of the law (and using a definition of conservative that means “doesn’t like too much change”, as opposed to the common usage of conservative that means “for big corporations”), as it appears to involve a fairly straightforward application of existing principles without much, if any, extension. So if it gets to the High Court – which, yeah, it probably will, but they’ve got to go through a Full Federal Court appeal first and then the High Court has to grant special leave to appeal – my money would be on the High Court ultimately upholding Cowdroy’s decision.
    But a couple of caveats: I haven’t been through all the legal arguments, or even all of Cowdroy’s decision, and also, these things can be unpredictable. So who knows?

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