Australian Court Gives Green Light To Disconnect Pirates

aesoteric writes "The Full Bench of Australia's Federal Court (three judges) has dismissed the film industry's appeal against a February 2010 judgment that found ISP iiNet had not authorised copyright infringement on its network. However, the ruling was a 2-1 majority and the judges have made several concessions to the Hollywood film studios. In particular, they set out a prescriptive path for the film industry to change the way it identifies alleged copyright infringers. The ruling says that if the film industry amends the format of its notices of infringement, pays the ISP to vet the notices and indemnifies the ISP against any fallout from disconnecting a customer, then disconnection is a reasonable step the ISPs should take to combat piracy. Essentially, the ruling gives internet service providers no absolute protection over the actions of their subscribers."

Comments

Close one

[mmj638]

It's scary that one of the three judges was willing to basically let the movie industry control the ISP industry in the movie industry's interests.

But overall it seems like a good decision; even if they did bend over a little for the movie industry, they did set out some expectations about what is and what isn't the right way to go about sending notices of infringement.

Re:Close one

[dwarfsoft]

I find it interesting that they specified that the Movie Industry needed to pay the ISP to vet the claims. Which means that frivolous disconnect requests should be weeded out or not submitted. This also means that the industry better have real evidence rather than just circumstantial evidence against their proposed user. Hopefully it should cut down on some of the bullying... It could have been far worse.

Re:Close one

[rtb61]

Not that scary, it makes the the person claiming copyright infringement fully liable for disconnecting the wrong person or having insufficient proof to justify that disconnection and they have to pay the ISP's cost. They will also have to pay for warnings (low onus off proof) and of course for disconnection (high onus of proof that the person who 'contracted' the service is actually infringing). So the more action they want from the ISP the more it costs them, with no cost recovery.

In Australia that often sides with the consumer. For example, having problems resolving issues with your incumbent Telecom, contact the Telecommunications Industry Ombudsman and that Telecom gets the bill for the time you spend with the ombudsman, you'll be surprised how quickly your problem get resolved.

Re:Close one

[Lord_of_the_nerf]

Actually, it's in our constitution, verbatim:

"Ye shall have the right to be judged two peers and the village idiot who dost equate the sharing of files with wagon theft."

Re:Close one

[exomondo]

This is a very disturbing ruling if the movie industry can essentially order disconnects without evidence.

Except that the ISPs have to paid to first vet the notices and even then if they do agree to disconnect the user the movie industry body has to indemnify the ISP against any action taken by the user. Seems like a pretty big cost and gamble that the movie industry body would have to take.

Copyright thugs rejoice! Bottom lines improved!

[mykos]

They're not solving a problem; they're simply transferring money from one industry to another.

I say that if an ISP has to lose a customer over copyright infringement, then the organization requesting the disconnect needs to pay at least half of the "lost revenue" (the term so loved by the copyright organizations) for the entire duration of the disconnected customer. That way they can split financial responsibilities between them.

Digital Capital Punishment?

[zlel]

Why don't we cut their electricity cos they used electricity to run the PC to connect to the internet?

The full judgement

[Cimexus]

The full judgement, including the majority and minority decisions, is available here: http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/23.html

It's worth a read, or a skim at least. The judges were entirely reasonable in their dismissal and actually do seem to grasp the technical side of the case quite well (no doubt assisted by iiNet having some excellent technical witnesses/advisors during the trial). Overall it's a very good outcome for Australian Internet users, and confirms the very high level of consumer protection in this country compared to many other places.

The concession to the film industry that will now allow them to legitimately send infringement notices with the potential to disconnect users is OK. There is a heavy onus placed on the film industry to come up with all the evidence, show that it's relevant and pay for the ISPs time to investigate. Further, if the disconnection is later found to be unwarranted, it is the film industry that bears all responsibility and liability, not the ISP. So although there is now a prescribed path the film industry can take to disconnect people, the barriers to doing so are high, which sound reduce frivolous claims and make sure they really only go after that large-scale uploaders, not every man and his dog that occasionally downloads a film or two.

Interesting how I've seen this news on so many sites, and they all report it with overwhelmingly positive headlines ... except Slashdot. Slashdot is the only site I've seen that somehow seems to wrangle this into a NEGATIVE sounding headling. Is it just me or is /. turning into the grumpy old man that likes to complain about everything and is constantly trying to push their agenda onto other people...

Re:Bit of a mixed bag

[dakameleon]

But they can send notices now - bad

It's not that they couldn't send notices before, but before it was more of a formality. They'd send the notice on as a warning that you've been noticed doing this activity, but the burden of enforcement wasn't there. Now, there's potential for a mechanism for these notices to be legitimate and enforceable - I think unless you're a hardcore committed anti-copyright activist*, you can hardly claim this is not reasonable. The burden of proof lies with the accuser, but it makes it more sensible in that Australian-based claimants should only issue notices if they have sufficient evidence to pursue conviction. Pretty sure the US ones will continue to issue their form-letter warnings no matter what.

Nowhere near as bad as the headline makes it sound

[euphemistic]

While it might give AFACT a better description of what it would potentially need to disconnect people, there are a few things in the summary by Judge Cowdroy which suggest even if they did, it still wouldn't happen.

13. Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act.

I find that iiNet did have a repeat infringer policy which was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so. ... While iiNet did not have a policy of the kind that the applicants believed was required, it does not follow that iiNet did not have a policy which complied with the safe harbour provisions. However, as I have not found that iiNet authorised copyright infringement, there is no need for iiNet to take advantage of the protection provided by such provisions.

20. The law recognises no positive obligation on any person to protect the copyright of another. The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts.

The above taken from the judge's summary of the findings

426. There can be no doubt that the respondent has the contractual right to warn and terminate its subscribers pursuant to its CRA if a breach of its terms occurs. However, that does not, of itself, make termination a reasonable step or a relevant power to prevent infringement in all circumstances. It must be remembered that absent those contractual provisions, the respondent would have had no power to terminate subscribers even if they were found by a Court to have infringed copyright. The CRA constitutes the respondent’s standard contractual terms used by a wide variety of subscribers. Consequently, and unsurprisingly, the CRA seeks to provide sufficient contractual terms to cover all eventualities, both existing at the time of the writing of the CRA and into the future. That does not mean that such terms should or would always be exercised even if a contractual right to exercise them arises. 427. Further, the right to do something does not create an obligation to do something. The doctrine of privity of contract provides that the only two parties relevant to the enforcement of the CRA are the respondent and the subscriber. Should the contract be breached by the subscriber, it is entirely a matter for the respondent to decide whether to act on the contract. Had the respondent taken action against its subscribers based on an AFACT Notice and it was subsequently found that the allegation was unfounded, the respondent would have committed a breach of its contract with the subscriber and been made potentially liable for damages without any indemnity from the applicants or AFACT. In such circumstance it was not unreasonable that the respondent should have sought to be cautious before acting on information provided by a party unrelated to the CRA.

436. The Court does not consider that warning and termination of subscriber accounts on the basis of AFACT Notices is a reasonable step...

The above taken from the full findings available at: http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html

Not all judges recommended disconnects.

[Spikeles]

Parts 436 - 442 from the full ruling show that at least one judge(remember there were 3) understands that cutting internet off is a bad idea.

The Court does not consider that warning and termination of subscriber accounts on the basis of AFACT Notices is a reasonable step, and further, that it would constitute a relevant power to prevent the infringements occurring.

Such punishment or sanction would be collective because the termination or suspension of a subscriber account would affect not just the person who infringed, but all those who access the internet through such account or use such account as a phone line via VOIP.

The law knows of no sanction for copyright infringement other than that imposed by a court pursuant to Part V of the Copyright Act. Such sanction is not imposed until after a finding of infringement by a court. Such sanction is not imposed on anyone other than the person who infringed. Such sanction sounds in damages or, if criminal, possible fines and imprisonment, not removal of the provision of the internet.

Re:Bit of a mixed bag

[wvmarle]

But they can send notices now - bad

Why is that bad?

It is just one avenue of copyright holders to protect their copyrights. Notices may have the effect of stopping an infringement that is going on without having to involve the courts immediately, I don't see anything bad there. However they will have to pay the cost of the ISP that deals with the notices, and I think that's a good thing. It basically means the copyright owner has to pay for their own cost of protecting their rights.

I have no idea what the legal value is of such a notice; though if a user is doing infringement, is served notices, and continues, then the damages to be gained in court will be higher. Though if the user stops, s/he may get off without any further ado. Which would be a win/win: copyrights protected, no ridiculous fines for the user. Nothing bad there again.

In the end suing someone for damages should be a last resort. Providing alternative solutions that can (and should) be tried first, is a good thing.