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Landmark Ruling Gives Australian ISPs Safe Harbor
omnibit writes "Today, the Federal Court of Australia handed down its ruling in favor of the country's third largest ISP, iiNet. The case was backed by some of the largest media companies, including 20th Century Fox and Warner Bros. They accused iiNet of approving piracy by ignoring thousands of infringement notices. Justice Cowdroy said that the 'mere provision of access to internet is not the means to infringement' and 'copyright infringement occurred as result of use of BitTorrent, not the Internet... iiNet has no control over BitTorrent system and [is] not responsible for BitTorrent system.' Many Internet providers had been concerned that an adverse ruling would have forced themselves to police Internet traffic and comply with the demands of copyright owners without any legislative or judicial oversight."
What I liked about this ruling was just how much they won it.
The judge said that Safe Harbour provisions did apply to the ISP... but they weren't needed because they only applied if the ISP explicit approved that user activity (which they do not)... and any infringement notices from the studios didn't need to be sent to consumers due to the Privacy Act (iiNet sends all infringement notices to the police instead)... and in any case the sending of infringement notices and subsequent banning etc was not considered a valid copyright prevention mechanism.
So yeah, they wiped the floor with them.
we still have a proposed Internet Filter, no R18+ rating for video games, and a South Australian government that passed a law saying that every person commenting about the election online must provide their real name and postcode. We have a long way to go yet.
Um, it's Australia, and the Federal Court in Australia.
Australia doesn't _have_ a Supreme Court, they have a High Court.
So, no, this probably isn't over yet.
There is still the High Court. The Supreme Courts in Australia only have jurisdiction over State matters.
Australia doesn't _have_ a Supreme Court, they have a High Court.
We have eight (8) Supreme Courts actually. But yes, you are correct this is the first instance case before a single Judge in the Federal Court. Appeal would usually lie to the Full Court (of the FedCrt) and then to the High Court of Australia.
Its the supreme court after all. I think that says it all.
maybe ACTA will be nexT?
Sorry, no it wasn't the supreme court. If you are an non-Australian you will find a more complete explanation here. If on the other hand you are a fellow Aussie and you think that we have a single supreme court I respectfully suggest that you have watched way too many hours of imported American TV shows. Stop it!
The case was held in the federal court - each state within Australia has it's own court system the highest court within each state is the state's own supreme court. As this seems to have been a case with respect to federal law it was brought before the federal court.
In any case there is an avenue for appeal. Leave may be sought for the case to be heard by the High Court which has appellate jurisdiction over the federal court and all states supreme court. This is not overly likely however as the high court rarely accepts matters and the majority of its sittings are to determine constitutional matters.
The next step in this process for AFACT is more likely to lobby the idiots in Canberra for new laws.
Andy Warhol got it right / Everybody gets the limelight
Andy Warhol got it wrong / Fifteen minutes is too long.
You can read the decision for yourself here.
Reports here this morning explicitly state that the Safe Harbour provisions were not invoked:
'Justice Cowdory agreed and said that, while iiNet was entitled to protection under the Safe Harbour provisions, there was no need for iiNet to take advantage of this as he did not find it authorised its users' copyright infringement.'
Here's a timeline of the case. Also the full ruling has been posted online.
I know you all speak English, but does 'Supreme' mean something different in Australia?
Each state and territory as a Supreme Crt, which is the highest court for that state and territory. The federal court system is separate and deals with federal law (eg. copyright law). The highest court in Australia is the High Court of Australia, to which one can appeal from the state Supreme Crts or from the Federal Crt.
Does that make it any clearer?
Para 635 of the reasons for judgement:
(1) The Court finds that primary infringement has been made out. The applicants have proven that the iiNet users ‘made available online’, ‘electronically transmitted’ and made copies of the identified films.
So given that primary infringement is established in this case by "iiNet users", the next but more difficult step would be the identification of a liable person who either committed infringement or is liable for infringement through their inaction (say the parents who own the internet account used for the infringement). Given that the Joe Doe IP discovery technique used in the US is not available, this could be hard to do. Primary infringement by iiNet users was admitted by iiNet, but the applicant does not have appeared to demonstrate infringement by user(s) of a given IP at a particular time outside of iiNet's admission.
Para 619 makes an interesting observation:
The Court finds that the respondent’s notification that copyright infringement may lead to termination of subscriber accounts (extracted above at [612]) put the iiNet users on sufficient notice that the respondent had a policy in relation to repeat copyright infringement, and that Mr Malone’s understanding of the factors necessary to take action under that policy is sufficient to constitute a repeat infringer policy for the purposes of condition 1 of item 1 of s 116AH(1).
Earlier, the court noted that iiNet's willingness to disconnect a repeat offender on order of the court, admission of infringement by the user, or where the court finds that the user infringed was enough ingredients to form a repeat infringer policy - a more than one strikes policy - but mere allegation of infringement would not be a "strike".
I think we are still some way from big content being able to go after individual users - and in Australia they will generally have costs awarded against them if they lose - like they have to pay iiNet's costs in this case.
The High Court really only deals with interpretation of the constitution
While this is true of the German Bundesverfassungsgericht, it is completely false in regard to the High Court of Australia. And yes, IAAAL.
Any point of law, whether it arises out if the Constitution or not, can be decided by HCA.
"Bundesverfassungsgericht"
I'd just like to say...damn, that's a mouthful.
The gollowing 5 states do not have a supreme court
Ashmore and Cartier Islands
Australian Antarctic Territory
Coral Sea Islands Territory
Heard Island and McDonald Islands
Jervis Bay Territory
Special award goes to
Cocos (Keeling) Islands, with a population of 628 people they have found a need for their own supreme court. This may just create the must supreme court justices per head of population anywhere in the world.
There's a small problem with targeting somebody to lose their Senate seat, especially when that somebody is in one of the two major parties (Labor or Liberal), and especially when that somebody is at the top of that party's Senate ticket for the state in question.
Basically, Australian Senators are elected on a quota system. Let's say that there are six seats to be filled (as is typically the case at an Australian Federal government election for state senators - each state has twelve seats in the Senate, and the ACT and the Northern Territory have two seats each; half the state senators are elected during most elections, whilst the ACT and NT senators are up for reelection at every election. This varies during a double dissolution election, when ALL seats are up for reelection - twelve seats for each state.) Let's say that there are seven thousand voters in the state (yes, I know there will be more; doing it this way makes the numbers much easier to play with.) Then a quota is (7000/(6+1))+1 votes, or 1001 votes. (In a double dissolution election, the quota would be (7000/(12+1)+1), or 540 votes.) If a given ticket gets 2002 votes, then that means they automatically have two quotas, and their top two candidates are given Senate positions.
There are a lot more intricate details to do with how surplus votes from a given ticket flow on to the next candidate, but they're not really relevant here. The point is, basically, that unless the Labor party decides to put Conroy further down in the ticket - to the third or fourth position - he's safely ensconced, and can't be ousted.
More's a pity.
In Australia judicial and policing roles are generally not politically appointments (with some exceptions) and the influence of corporations is very limited.
In cases like this it is more a case of convincing the government to change the law. Unfortunately this is something AFACT will probably find relatively easy to do with our current Federal government particularly the Senator Conroy as the Minister for Broadband, Communications and the Digital Economy.
Double plus bonus on the ruling, not only does it set precedent but also "The Australian Federation Against Copyright Theft representing the film industry, has been ordered to pay iiNet's costs", loser pays in Australian Civil courts, which is why they never played around with suing end users. You lose one case, you lose them and then have to pay everyone's court costs.
Chaos - everything, everywhere, everywhen