iiNet decision not a free pass: experts

iiNet decision not a free pass: experts

Summary: The iiNet High Court copyright decision doesn't give internet service providers (ISPs) a free pass on authorisation of copyright infringement over BitTorrent, legal experts have stated.


The iiNet High Court copyright decision doesn't give internet service providers (ISPs) a free pass on authorisation of copyright infringement over BitTorrent, legal experts have stated.


(Gavel image by walknboston, CC2.0)

On Friday, the High Court ruled that iiNet had not authorised the copyright infringement of its users through BitTorrent, because iiNet's power to stop its customers' infringement was limited to being able to switch off the internet access entirely. As such, iiNet's decision not to act on infringement notices provided by the film studios' lobby group Australian Federation Against Copyright Theft (AFACT) did not amount to authorising the customers' infringement.

Timothy Webb, senior associate at Clayton Utz, told BRR on Friday that although ISPs in iiNet's exact situation (that is, they didn't have the technical power to prevent BitTorrent use, and didn't actively encourage copyright infringement) would now have a defence against any authorisation argument, AFACT could potentially change the situation.

After this defeat, AFACT could refine its methods of issuing infringement notices and target ISPs in other ways, he said.

"They could start again and issue the notices they previously issued to iiNet or another ISP, but improving them, providing better evidence and offering to pay the costs and indemnify the ISP from any liability for any wrongful termination for accounts," he said.

Miriam Stiel, a partner with Allens Arthur Robinson, also said that ISPs shouldn't be celebrating just yet.

"I'm not sure it quite justifies all ISPs popping the champagne. It doesn't mean that ISPs are off the hook completely. The court hasn't said that an ISP couldn't never be liable for authorising copyright infringement involving peer-to-peer file sharing," she said.

"It has actually left open the possibility that different circumstances might lead to a finding of authorisation."

Yet, it might not be so easy for AFACT to pin down what exactly needs to be in its notices. Hamish Fraser, partner at law firm Truman Hoyle, told ZDNet Australia that the High Court ruling "puts to bed" the "shopping list" provided by Federal Court justice Arthur Emmett in the appeal judgment for what steps a rights holder could take to force an ISP to act on infringement notices.

He said that if iiNet were provided with "unequivocal and cogent evidence of the alleged primary acts of infringement by use of the iiNet service in question", along with information on how that evidence was gathered in order for iiNet to verify the claims, and the ISP still didn't act, then the provider could be found to have authorised infringement.

Yet, the High Court judgment indicates that it might not be possible for rights holders to put anything in the notifications that would force iiNet to act.

The High Court judgment was unanimous in iiNet's favour; however, two of the justices — Willian Gummow and Kenneth Hayne — wrote a minority judgment separate from that of Chief Justice Robert French and justices Susan Crennan and Susan Kiefel.

The majority and minority judgments stated that iiNet's ability to prevent a customer's copyright infringement was limited to switching off that customer's internet access, but the Gummow and Hayne minority judgment went further, and looked at whether it would have been reasonable in any circumstance for iiNet to have acted on AFACT's notices:

Warnings might or might not have that effect. Evidence was lacking of likely behaviour in that respect by users of ISP facilities. Further, with respect to the AFACT notices, was it reasonable to expect iiNet to issue warnings or to suspend or terminate the contracts of customers when AFACT had not fully disclosed the methods used to obtain the information in the AFACT notices?

In truth, the only indisputably practical course of action would be an exercise of contractual power to switch off and terminate further activity on suspect accounts. But this would not merely avoid further infringement; it would deny to the iiNet customers non-infringing uses of the iiNet facilities. And, in any event, in the absence of an effective protocol binding ISPs (and there is no such protocol) the iiNet subscribers whose agreements were cancelled by iiNet would be free to take their business to another ISP.

"It doesn't lay out the roadmap in the way Emmett did," Fraser said.

Fraser said that for this reason, it is unlikely that Emmett's "shopping list" could be used by AFACT to develop another approach to bring ISPs in to enforce copyright on their behalf.

While AFACT managing director Neil Gane said on Friday that it is time for the government to intervene and change the Copyright Act to include clauses around peer-to-peer file sharing, Gane said that discussions with the industry over a voluntary customer warning scheme would continue. Fraser expressed doubt that an industry code would work if it lacked judicial oversight.

"I always have a difficulty with the notion that anyone other than the judge should be the judge. Who is to judge that an infringement is occurring?"

He said that developing an industry code for how to prevent the use of BitTorrent or other file-sharing programs may be one way forward, but any regime where internet access may be taken away would go too far.

"For many people these days, it is their sole method of communication," he said. "It's very serious business to turn someone's internet off because of an allegation they've been infringing on copyright without a finding."

Fraser said that a public education campaign from lobby groups like AFACT would go a long way to reducing copyright infringement, along with making the content more easily available at an affordable price.

"We can now get much better access to content than we could [in 2008 when the case began]. I think the vast majority of people just want content. They just want to get access to that content, and you can do it much better now than you could four years ago."

Webb said that the most likely course of action for AFACT would be to lobby the government for legislative change, and said it is important for ISPs to get their policies for dealing with repeat infringers in place.

"ISPs should have a written repeat infringer policy for dealing with the termination of accounts of repeat infringers. That allows them to rely on what is known as the safe harbour provisions of the Copyright Act if they are found to have infringed," he said.

iiNet was seeking to rely on the safe harbour provisions if the company was found to have authorised its users' copyright infringement; however, because the ISP was not, the High Court did not consider this aspect of the case in its judgment.

Topics: Piracy, Government AU, Legal, Security, Telcos


Armed with a degree in Computer Science and a Masters in Journalism, Josh keeps a close eye on the telecommunications industry, the National Broadband Network, and all the goings on in government IT.

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  • I've read the entire judgement (not the media release) and it’s quite clear that Timothy Webb didn't.

    A few points re notice:

    1. The judge ruled the notices were insufficient for iiNet to act on. That an IP address is not a person and that in the RC-20 list that some of the IP address (point 96 of judgment) were not even recognised as iiNet IPs. How could iiNet act on something that AFACT refused to disclose on how it was captured, that was inaccurate, contained errors and in some cases didn't actually show infringement.

    2. The evidence AFACT submitted eventually showed that not every one of the alleged breaches were in fact breaches (point 98).

    3. it’s clear that unless AFACT went to a court to request the identity of a user that a notice bearing an IP addresses, date/title of the licensed media etc is insufficient. I can see why the lawyers don't realise that there is no other information that can be technically captured but unless AFACT has a magical ability to discern a person’s name from an IP address then they are up **** creek. Even if they offer to accept liability for the wrong termination of a customer account.

    4. The High Court has made it crystal clear that even if iiNet had reasonable evidence (point 69) of a breach that termination of a service is completely pointless. Let me repeat that again. There is absolutely no point to terminating the access of a service. Why because it doesn't prevent the customer from signing back up to iiNet or another provider. It doesn't stop the copyright breach! Get those legal experts. You need to read points 65 through to 70.

    The high court even threw out the dissenting Federal Court opinions. Especially those raised by Jagot J. Utterly rubbished her argument that iiNet's lack of action constituted authorisation (based on a media release that iiNet disagreed with AFACT's claim). How embarrassing. Even arguments that if the notices were changed was utterly rubbished on.

    So what happens now? I would even go as far to argue that if parliament was to put into law everything AFACT wants i.e. iiNet's actions constituted authorisation of copyright infringement that the High Court would strike those laws down with seconds of the matter being heard. AFACT are utterly screwed.

    But as I've said on my forums the current model of selling movies and TV shows to free-to-air broadcasters in each country nets the content publishers massives amounts of profit. That's why they refuse to go to internet distribution because it would eat into their profits in big way. Even if AFACT does not secure the legislative legitimacy it so desires they won't change their model.

    We need to destroy the free-to-air broadcasters in this country to force a change in the business model.

    For people who want to be properly informed you can read the judgement at:
    • Just some comments:
      a) An IP address and date/time can identify an account (only the IPS knows that), and by extension, a person responsible for making sure that it is used for legal purposes. This is the same as a fine for a speeding ticket is issued to the vehicle owner unless they can show someone else was driving it at the time.

      Of course, a copyright owner would have to state how they identified the IP address and date/time of the infringement. The High Court appeal recited that the ISP was the only entity that could identify an account given those two pieces of information.

      b) If not specified already, contracts with ISP could be forced to include provisions whereby the account owner would be warned about perceived infringements with a time limit for them to respond, and in the event of failure to desist from infringing activity, a date of termination of their account.

      It would be up to the account owner to ensure that any users of that account's data comply, just like local councils will fine the legal occupier of a property for any noise infringement. It is not required to identify the actual culprit, but just ensure that the legally responsible person does their due diligence and ensures compliance by all users.

      A register of defaulters could be set up to enable their next intended ISPs to specifiy extra provisions to better manage the risk of further infringements. There is ample legal precedence for such arrangements.

      Just having statements about some uses being illegal without specific means of enforcement are empty requirements. If ISPs don't see the writing on the wall, such 'acts of ommission' may be considered complicitness under future legal arrangements.

      c) "High Court would strike those laws down with seconds of the matter being heard" is meaningless FUD, as unambiguous and properly framed laws that are compliant with the Constitution will withstand legal challenges, and get nowhere near the HC.

      The problem here is that the laws were not clear about remedial actions required, and AFACT did not supply clear identifying info (IP addresses and dates/times) with auditable trails to infringing acts.

      d) Conceptually, internet distribution is not different from rental shops, and those have provided a substantial income inspite of free-to-air TV rights. Makes your last comments more FUD.

      The problem is that the bandwidth available to the general public has not been up to the quality of DVD and BD movies in the quantities they want them. The NBN will be an enabler for that.

      The main problem is that the media companies have not been transparent enough about their cost structures, as that would tend to highlight their past (and current?) abuses and inequitable treatment of people in the industry, and undermine the gross distortions involved in the 'star' system.

      If they can bite the bullet and move on from their nefarious past and delusions of the present, they may be able to begin to get the public on their side by a balanced education.
      • a. If someone was sitting outside my home and hacked into my network and

        downloaded copyright material it puts this question who is committing the

        offence of downloading copyright material into a very grey area.

        b. How do I know that the whiz tech kid who lives next door has hacked my

        network after I have taken all of the means available to me to prevent this

        and he has used my IP Adress to download copyrighted material. As an

        internet user this is something beyond my control, my ISP wont provide me

        with advanced hacker proof software to prevent this.





        D. OMG, We have already copied music from our old vynl records to cassette

        so that we can listen to the music we own the licence to so that we can hear

        it in our cars or our portable cassette players, oops my age is showing. CD

        to MP3 for our players so I can listen to the music I love whilst I go for a

        run without a record player hanging of my belt and stereo speakers slapping

        me on the side of my head while I jog to Deep Purple.

        Patanjali, I hear you bro, it is all elitst, money grabbing, short term

        thinking bullshit. Lets support a twenty year moratorium on copyright, if

        they havent made enough bucks by then its not worth listening too. As for

        the artists who claim they are being ripped off. History will tell. If

        they are remembered and appreciated by folk who will download their music

        then they will be entitled to earn the accolade CLASSIC. What is better,

        short term profit or being LEGEND.
  • Unlike 1984 I have not read the entire judgement but I can see problems with Patanjali's arguments re identifying the culprit. In some cases it may well be impossible to identify the person(s) responsible. I have a house in which there are several adults, each of whom uses my Internet connection via wifi. I am unable to work out who is downloading what from where. The examples given by Patanjali are not applicable because with example:
    1. The speeding ticket issued to the owner of a photo of a car, it is reasonable for the car's owner to know who was driving. But note that businesses in NSW have been declaring they do not know who was driving and no one has been held responsible for the offence.
    2. With a noisy house it is again possible to identify the culprits. The owner or his representative can be present to prevent the offence.
    • I didn't read either but as clear as daylight Patanjali is wrong in his/her interpretation, now patanjali you can take your commnets to India since judging by your user name is where you from now don't get me wrong but your blatant dissregard for democracy and individual rights is just unbelivable to compare speeding fine with something as complicate as this. MaudelLynne allready pointed out why your comments are just stupid and these kind of judgment is possible only in a country with no respect for any individual such as yours. God you are stupid, upon receving infringment notice in court they have to prove it was obtained legally for it to work even then when everything fails one can argue that the ISP account was hacked and not used by the owner of the account since it can be done thru wi-fi what chances they have proving its not correct, there are lot of ppl using open wi-fi conection because they are not computer literate(just switching PC on and using internet doesnt make you computer savy) hence openig themself to their internet conection being used without their knowledge. Last thing is police do tamper with the photo evidence (I recieved the speeding fine from Queensland even though I never went to Queensland to this day) so who is to say they wont do the same or use dirty tactics as police does well I have tos mention it since yoju are the first to compare. Say you go visit piratebay but you dont take nothing from it would that be infringment as well because this would be one case of dirty tactics. It all comes down to the money, the whole entertaiment industry would want you pay thru the nose for everything that is out there, say buy cd they get money, same song being played in the nightclub they again get money and thru other means htey get money, they just wnat to have 100% control so they can charge you with whatever ammount they please. Ammount of cd's I have if you calculate the cost would equal to that of a $10,000 car I used to get cd's from UK for 200 pounds per 6 cds go figure so pls next time you think you are smart and want to post comment make sure its an Indian based website where democracy means s**t or and can I guess your line of work is it by any chance engeniring mechanics lol.
      • Mixmeister73: I think it is you who should get your head out of your backside. Patanjali's comment was clear enough to me, maybe some refining here and there is needed, but still.

        "a) An IP address and date/time can identify an account (only the IPS knows that), and by extension, a person responsible for making sure that it is used for legal purposes."

        This is true. ISPs are responsible for handing out IP addresses to homes and many businesses (small to medium businesses mostly, larger ones are able to lease IP addresses privately). ISPs keep track of these leases by binding the IP address to a modem/router at the premises, so if an IP address is flagged as downloading copyrighted material, it is not much to identify the account holder responsible.

        Now, the flaw in this is the "account holder" is not always the person who is on the torrents, particularly in multi-user, multi-computer environments such as a home wireless network. If security is weak (or non-existant), then it is harder for the account holder to prove his innocence in cases like this, short of seeing a computer forensics lab.

        "b) If not specified already, contracts with ISP could be forced to include provisions whereby the account owner would be warned about perceived infringements with a time limit for them to respond, and in the event of failure to desist from infringing activity, a date of termination of their account."

        To continue on from above, the account holder is suspected of downloading a movie, music or software illegally, and asked to stop. You can appeal your case if you have sufficient evidence (if you weren't home or something). Time limits would be the key. One week or so to get your stuff together would be pretty generous. This would be ample time to get written statements or other proof saying you were at work, at the shops, picking up the kids... whatever.

        Of course, if you are indeed the one downloading the torrents, and you continue after a warning and speed throttling, then yes, the ISP should disconnect your service (temporarily and/or permanently). That's how I would do it if I were operating an ISP. Written warning, bandwidth reduction, one month suspension at full month subscription, and finally termination at full cancellation of contract).

        As is stated in the main article, there is no provisions stopping people from switching ISPs. What should be in place is a register for cybercriminals, so when they do try to switch ISPs within, say, 3 months of account termination (base level, increased depending on the severity of the crime (hacking, fraud, identity theft and the like will get more time offline, and cyberterrorists and sex offenders disconnected permanently, even after their criminal sentences)), their name is flagged and they are denied the application.

        "c) ... The problem here is that the laws were not clear about remedial actions required, and AFACT did not supply clear identifying info (IP addresses and dates/times) with auditable trails to infringing acts."

        This should be AFACT's responsibilty. After all, if they issue warnings suspecting users of copyright infringement, they should give full disclosure on their sources and their methods to the ISP, so the ISP would then have more reason to act than simply speculation.

        "d) Conceptually, internet distribution is not different from rental shops, and those have provided a substantial income inspite of free-to-air TV rights."

        And thus we lead to the conclusion. Although bandwidth is still currently a limiting factor, there is ample storage space and processing power to provide streaming and legal downloads of DVD-quality (or at least, broadcast-quality) TV shows, movies and music. AFACT simply does not want to let go of an aging practice, when in essence migrating to online distribution would net them more money than even their greedy, gold-plated heads can imagine.

        Like I said in the opening statements: this is simply a rough guess, and more work can be done in order to make this idea into proper legislation, but the ideas are there.

        One last thing: If you are basing your bias on the assumption that Patanjali is Indian, though, well guess what... I ain't.