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.