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Australian ISP Wins Case Against Movie Studios
trawg writes "The Australian High Court has just dismissed an appeal by Australian and American media companies against ISP iiNet, in what will hopefully be the final step in an ongoing copyright lawsuit drama. The Court noted that 'iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright.' Ultimately, the court has held that iiNet's inactivity to act on infringement notices didn't imply any sort of authorization of that infringement by their customers. Good news for Australians as a clear line has been drawn that will help ensure ISPs don't have to bear the cost of policing their customers."
As an Australian, this is a big relief. iiNet are actually a pretty good ISP too: great network, good service, reasonable prices.
The trouble is, when the courts smack down the media companies, the government steps in with new legislation, since they are in the back pocket of the media companies. Stephen Conroy, Labor's communication minister has already signalled that when iiNet loses, he's going to do just that.
Here's the Judgement Summary: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf
Here's the full Judgement: http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
In the full judgement, the Justices systematically (and unanimously!) take apart the assertion that iiNet had "authorised" infringement just because they refused to kowtow to demands that they police their users for the copyright lobby. They point out that it's not appropriate (or legal) for an ISP to monitor or police their users' private traffic at the demand of another private entity.
Further, they held that the notices of infringement (aka shakedown letters that most ISPs meekly pass along) "did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts".
And at the very end, after the Justices explicitly provide some useful closing of loopholes by carefully passing over the legislation and common law cited by the copyright lobby... they order said lobby to pay all iiNet's costs.
Glorious.
The two main courses now of action seem to be: the media companies start offering media in a reasonable format in a reasonable timeframe at a reasonable price, or they lobby government and pursue backroom deals. The first is supported by many and has been proven to work fairly well with PC games by Valve with Steam, and iiNet has said it would be happy to help with this. The second however is much more in character, despite having been proven fairly well to not work.
Also, very glad to see that the High court awarded costs in iiNet's favour - translation, the MAFIAA have to pay all of iiNet's lawyers bill!!!
... wait, what?
Also, very glad to see that the High court awarded costs in iiNet's favour - translation, the MAFIAA have to pay all of iiNet's lawyers bill
It is the default in Australia that a losing party will be ordered to pay the winning party's inter-party costs. It helps to inhibit frivolous litigation.
"Oh well, we lost fair and square, let's move on"
They didn't, the lost their original case, their appeal was denied and they took it to the High Court of Australia - pretty much the equivalent of SCOTUS in the US. There really isn't anywhere further for them to take this case.
Sure, they might try down a parallel path with a similar objective, but a wonderful side effect of taking it to the High Court is that now pretty much any similar path they try will still be in the shadow of this ruling - making it greatly more difficult for them to introduce anything remotely similar.
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There is a reasonable technical way to police bit torrent. (watch torrent, determine torrents contents is your intellectual property, get list of IP addresses from the swarm, match those to users via ISP) But now the studios have to subpoena the ISPs with enough details to satisfy the ISPs legal departments then sue or prosecute the end users. The studio wanted the system where they got to shortcut the legal system at the expense of the ISP to punish the end user.
Basically the court said "If it's worth doing, it's worth doing properly. If it ain't worth doing, stop doing it."
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Yes, iiNet won and the studios lost. Now here's the reaction from the studos' media representative (http://www.abc.net.au/news/2012-04-20/iinet-wins-download-case/3962442):
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AFACT [*] managing director Neil Gane said the group would lobby for changes to copyright laws following the decision.
"Now that we have taken this issue to the highest court in the land, it is time for government to act," Mr Gane said.
"The Government has always maintained that content is the key driver of digital economic growth. I'm sure the Government would not want copyright infringement to continue unabated across Australian networks, especially with the National Broadband Network soon to be rolled out."
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[*] AFACT is the Australian equivalent of the RIAA/MPAA, or rather, as some Wikileaks memos have shown, they are the Australian arm of the RIAA/MPAA, the control directly coming from the States.
So, the copyright industry's attitude is that "if what we demand is unlawful, we will lobby/bribe/force the government to change the law to our favour". Knowing the Australian parliament, probably they will succeed in a reasonably short time.
There's a whole slew of ideas that were once considered so important they were taken for granted but have fallen out so thoroughly that people today barely even think of them at all.
For instance, thirty years ago there was a consensus that one company shouldn't control huge swaths of the media. It was understood that even the appearance of the conflict of interest was not to be tolerated.
You'll get blank stares these days if you bring them up.
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