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Case Report: ISP Did Not Authorise Copyright Infringement, This Time…

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Background:

In August 2007, 34 Hollywood and Australian film and TV studios (The Studios) through the Australian Federation Against Copyright Theft (AFACT) began investigating copyright infringement by internet users in Australia. AFACT engaged DtecNet Software APS to collect infringement information. In July 2008, after receiving reports on the actions of iiNet users using the BitTorrent System, AFACT served its first notice on iiNet. This was followed by weekly notices for the next year which stated iiNet customers were infringing copyright and if action was not taken, iiNet may be found to have infringed on copyright. In November 2008, proceedings were commenced against iiNet in the Federal Court.

What The Studios had to prove?

The Studios sought to impose liability upon iiNet on the basis that iiNet had authorised the acts of infringement by iiNet customers. There are three considerations required to prove authorisation are contained in s101(1A) of the Copyright Act 1968 (Cth): These include: the extent of iiNet’s power to prevent the acts of infringement, the nature of the relationship between iiNet and the infringers and whether iiNet took reasonable steps to prevent the acts of infringement.

Earlier Decisions:

The trial judge in the Federal Court found that iiNet had not authorised the infringements of copyright and was therefore not liable as iiNet had merely supplied the precondition to the infringement occurring rather than the means of infringement. On appeal, the Full Court of the Federal Court found that authorisation was once again not established, the Court said that an ISP may be found to have authorised an infringement and that sending infringers notices may be a reasonable step for an ISP to take to avoid liability under s101(1A).

High Court:

The High Court affirmed that iiNet should not be found to have engaged in authorisation within the meaning of s101(1A). The court noted that iiNet had no direct control over BitTorrent. The most effective way to cease acts of infringement would be to terminate the contracts of infringers; however the court noted that this would only prevent future acts of infringement and it would also prevent the customer from engaging in lawful use of the internet. The Court did not decide whether termination of contract would be a reasonable step to require of ISPs.

What this means for you?

The High Court mentioned that s101(1A) is not particularly suited to the enforcing of copyright in the online peer – to-peer sharing context. Rather a targeted legislative approach may be a better way to protect copyright online. Nevertheless, it has not been ruled out that an ISP could be found liable for authorisation under this section.  As a result, ISPs are likely to implement policies to deal with repeat infringers so as to ensure that they do meet the ‘reasonable steps’ requirement.

This case has illuminated the pervasive nature of monitoring technology that is being used to monitor infringements, all internet users and ISPs should be mindful that this monitoring may be taking place behind the scenes and recording acts of infringement.

Author: Michael Koss

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