Film distributor loses copyright appeal against Aussie ISP

Ruling frustrates entertainment industry bid to hold ISP responsible for customer actions

Australia’s High Court has found in favour of ISP iiNet in dismissing an appeal by Roadshow Films, seeking to hold the ISP liable for copyright infringement by its customers in downloading copies of movies distributed by Roadshow.

The finding has been keenly awaited by Australian internet and civil liberties specialists and is significant in the light of repeated attempts by the entertainment industry to press for laws and interpretations of laws that will hold ISPs in some measure liable for the acts of their customers. The Megaupload case is a key example.

The finding is “very relevant” for New Zealand, since our law closely parallels Australia’s says Auckland-based IP and ICT lawyer Rick Shera; it will provide reassurance to NZ ISPs, he says, that they are reasonably secure from being held liable for their customers’ misdeeds, not only in copyright breach but in other areas of the law.

Even if iiNet had known infringement was going on through its services, in violation of its “customer relationship agreement” and had failed to terminate service to the offenders – as it was entitled to do – this still did not amount to “authorising” the infringement, in terms of Australia’s Copyright Act, the court has found.

The ISP was aware of alleged acts of infringement by downloading, as notices alleging infringement had been sent to iiNet by the Australian Federation Against Copyright Theft (AFACT).

While the dictionary definition of “authorise” includes the word “countenance”, it is not appropriate to expand the notion of countenancing to imply authorising, the judgement says. “It would be wrong to take from [the definition] one element, such as "countenance", and by fixing upon the broadest dictionary meaning of that word to seek to expand the core notion of "authorise".

Authorisation, the court decided, implies that the person giving active or tacit permission for an act must have power to stop it. An ISP, merely providing a communication service, has no power to stop specific uses of that service such as, in this case, the use of the peer-to-peer application BitTorrent.

It could, of course, terminate the alleged offender’s internet service altogether, but the court pointed to a previous legal opinion that “for authorisation of infringement to be made out, there must be a direct power to prevent a specific act, such as a specific infringement of copyright, and not a power which would indirectly achieve that result only by putting an end to a relationship, such as that between lessor and lessee.”

The finding cites a clause of Australia’s Copyright Act - Section 112E – which provides specifically that “a person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.”

We have no precise equivalent to that clause in New Zealand law, Shera says, but the Australian court’s decision did not rely specifically on that provision, so the principles involved will still be applicable in this country.

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