iiNet wards off AFACT, but what next?

iiNet wards off AFACT, but what next?

Summary: Big Content's attempt to make internet service provider (ISP) iiNet responsible for its customers' copyright infringements has been soundly defeated, but the battle won't end there.

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Big Content's attempt to make internet service provider (ISP) iiNet responsible for its customers' copyright infringements has been soundly defeated, but the battle won't end there.

Friday's High Court ruling in the so-called iiTrial was certainly a victory for the ISP, which now gets to recover some of its $9 million in legal costs.

But, as Dr Rebecca Giblin explains on this week's Patch Monday podcast, what it's not is blanket protection for ISPs against any future action by copyright holders. Nor is it proof that the internet "can't be regulated". Those views are simplistic.

"If any ISP is engaging in that dodgy sort of behaviour, where they're really giving a bit of a nudge and a wink to infringement, where they are supporting people in downloading infringing content, making it easier in some way, or really any kind of conduct that suggests infringement is perfectly OK, then I think that there's plenty of scope for them to be liable for authorisation," she said.

"But the take-home message from this judgment is that any ISP that's simply engaging in normal ISP-type activities is not going to be liable for their users' infringements just by virtue of doing that."

Neil Gane, executive director of the industry lobby group Australian Federation Against Copyright Theft (AFACT), reckons that the High Court's ruling is proof that the Copyright Act, as it stands, can't protect copyrighted content online.

"I think that that's actually simply incorrect," Giblin said.

"There is nothing stopping the content owners enforcing the extensive rights that they've got against the individuals that are doing the infringement. They can certainly go to court and get an order to find out who is behind a particular IP address, and they can sue them for infringement. There's nothing stopping them from doing that."

They just choose not to, because it's expensive, and, when they tried it in the past, it sometimes resulted in a public relations disaster.

Giblin, a copyright academic and geek from Monash University's law school, literally wrote the book on this subject. Code Wars: 10 Years of P2P Software Litigation was published in December 2011.

She puts the iiTrial into its historical context, and explain its ramifications. Along the way, she observes that consumers will no longer put up with heavy-handed actions by copyright holders — witness the SOPA/PIPA protests — and that new business models are developing, including peer-to-peer production and micro-patronage funding models through services like Kickstart.

Giblin also comments on the observation by American white collar crime expert Professor Stuart Green from Rutgers University Law School that copyright infringement is not theft, but something more like the crime of trespass.

To leave an audio comment on the program, Skype to stilgherrian, or phone Sydney 02 8011 3733.

Running time: 37 minutes, 08 seconds

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

About

Stilgherrian is a freelance journalist, commentator and podcaster interested in big-picture internet issues, especially security, cybercrime and hoovering up bulldust.

He studied computing science and linguistics before a wide-ranging media career and a stint at running an IT business. He can write iptables firewall rules, set a rabbit trap, clear a jam in an IBM model 026 card punch and mix a mean whiskey sour.

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3 comments
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  • So by AFACT's logic the film and television companies can be sued by anyone and everyone who has been a victim of a crime where the perpetrators get the idea from a movie or TV show. I'd like to see that put to the test.
    wolfrider56
  • Reading the High Courts judgement shows that just depending on a IP address to get someones details could be difficult if the ISP decided to challenge it.

    See between points 60-72 the high court stated that basically the notification doesn't have enough information on it for iiNet to act on it and terminate a customers access.

    So in turn why would the information that is usually contained on the notice (i.e. IP address) be enough for a court to grant a copyright holder a subpoena to have access to the user details?

    The problem here is that a IP address is not a person, its not an entity.
    chugs@...
    • You're quite right about the IP address not being the person, but it's the first step in finding out who the person is. A lot of these issues were discussed in the original Federal Court case and then the Full Federal Court appeal, so it's handy to read them too — if you have a couple of days.

      Federal Court, February 2010:
      http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html

      Full Federal Court, February 2011:
      http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/23.html

      High Court, April 2012:
      http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
      stilgherrian