Delimiter » movie studios

iiNet’s Hollywood ending: what does its court victory mean for copyright law?

External Contributor — Mon, 23 Apr 2012 02:29:02 +0000

This article is by Nicolas Suzor, a Lecturer in the Faculty of Law at the Queensland University of Technology. It was first published on The Conversation and is re-published here with permission.

analysis In what is being billed as iiNet versus Hollywood, the Australian internet service provider has come out an apparent winner after the High Court dismissed a copyright infringement case brought by industry movie studios. The case was a final appeal by the industry in its attempts to crack down on internet users infringing copyright by using BitTorrent to download movies. Nicolas Suzor, lecturer, Faculty of Law at Queensland University of Technology, explains the decision and what it means.

What’s the background to today’s decision?

This decision is the culmination of the last few years of litigation by the Australian Federation against Copyright Theft (AFACT), in conjunction with 34 movie studios. They sought to argue that iiNet, which is Australia’s second largest internet service provider, was liable for copyright infringement when its users used their home internet connections to download and upload movies using the BitTorrent protocol.

The High Court has found in line with the lower level court decisions that iiNet was not responsible for the actions of its users. The evidence before the court was that iiNet hadn’t done anything beyond providing the internet connection. The High Court found in order to be liable something more is required – iiNet cannot be liable for merely being inactive in response to allegations of infringement of copyright made by AFACT. Importantly, the High Court ruled that it would not be reasonable to expect iiNet to disconnect the accounts of its users solely on the allegations of infringement provided by AFACT.

What are the implications of this decision? Other internet service providers will no doubt be watching with great interest.

It’s a very important decision worldwide. We’ve only seen a few of these decisions so far. There was one in the Irish High courts where the Irish ISP Eircom was found liable for infringement on its network.

This decision in Australia is the most considered decision that we have seen in common law countries. It represents the next iteration of an attempt by copyright owners to enlist the aid of internet service providers to police infringement on the internet.

Over the past 15 years, copyright owners have had trouble using litigation to deter copyright infringement. They started off targeting companies like Napster and Kazaa, who were clearly encouraging the infringement of copyright by developing peer-to-peer file sharing networks that were designed to allow people to share copyrighted materials.

Then those technologies started to become decentralised and the copyright owners found they could not sue the developers of technologies like BitTorrent because they are such widely used general-purpose protocols, and they couldn’t sue end users because it tends to be terribly expensive, terribly unpopular, unfair and, realistically, quite ineffective.

So most recently, they have been trying to impose a duty on domestic ISPs to police infringement on the network. This approach is attractive because ISPs are quite big targets and, by imposing regulation at that point, they can potentially have quite a strong flow-on effect on the ability to control what users are actually doing.

This is quite an important decision worldwide because a lot of different countries are trying to look for different ways to target infringement and trying to sort out the principles on which ISPs should and should not be required to police what is on their network.

France had a quite controversial three strikes regime, which was struck down by the Constitutional Court and, in the end, was recast as a more limited and legitimate judicial regime. Both the UK and NZ have also introduced controversial “graduated response” regimes, where users will be progressively warned and potentially have their internet accounts terminated when they are found to have infringed copyright. The US has not gone so far, but the major ISPs have agreed with copyright owners to introduce some form of private notification scheme.

What about here in Australia?

Here in Australia this was seen as a test case to see if ISPs already have a duty to police Australian internet users under the law. It was quite ambitious in that the duty to terminate is not explicit under Australian law. The questions was whether or not ISPs that did nothing more than provide a connection could be liable. If they were, that would impose on them an obligation to do something about copyright infringement – although AFACT was never quite clear on what exactly it expected ISPs to do.

So what will the next move be from copyright owners?

I think two things may happen. This decision provides a good deal of certainty to Australian ISPs under current law, so copyright owners will likely increase pressure on policy makers to develop a new legislative regime. Copyright owners are still looking for a way that they can enlist the help of intermediaries such as ISPs to police copyright infringements, although such regimes are often highly controversial. It is unclear at this stage whether the federal government will entertain copyright industry demands for a three-strikes or similar system in Australia, particularly in the face of strong public opposition worldwide. At any rate, little is expected to change before the Australian Law Reform Commission completes its review of the copyright system near the end of 2013.

We are also starting see the emergence of an acknowledgement by copyright owners that it is important to develop business models which provide consumers with cheap, high quality and fast access to entertainment and other copyright material. The one thing that has worked in last 15 years is increasing access: models like iTunes, Amazon’s Kindle, and Netflix have been able to successfully provide a legitimate and convenient alternative to infringing filesharing.

This article was originally published at The Conversation. Read the original article.

iiNet wins High Court Internet piracy trial

Renai LeMay — Fri, 20 Apr 2012 00:08:47 +0000

news iiNet today emerged victorious in a landmark High Court victory against a coalition of film and TV studios on the issue of Internet piracy through peer to peer platforms like BitTorrent, in the conclusion of a long-running case which is viewed as the a test for how Australia’s telecommunications industry will deal with the issue in future.

“#iitrial appeal dismissed!” wrote iiNet chief executive Michael Malone on Twitter this morning. A statement by the court, available online in PDF format, states:

“Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants’ copyright in commercially released films and television programs.”

It appears that the full judgement is available online here.

A group of 34 parties, comprised of most major Australian and American film studios and led by umbrella organisation the Australian Federation Against Copyright Theft, first took iiNet to court in 2009 after claiming iiNet had “authorised” its users to download pirated movies and television over the Internet. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises and the Seven Network (Australian licensee of some of the infringed works).

After the original decision of not guilty made in February 2010 was appealed, the full Australian Federal Court ruled on appeal in February 2011 that iiNet was not responsible for the illegal downloading. However the parties against iiNet decided to attempt to appeal the decision yet again, lodging an application soon after on the 24th March 2011, with the High Court of Australia for a special leave to appeal grant. In August the High Court agreed to hear the case.

Today, in its statement, the High Court noted that it had “unanimously” dismissed AFACT’s appeal.

“The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films,” its statement read. “Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers.”

Referring to a large number of copyright infringement notices sent to iiNet, which some ISPs forward on to their customers (but iiNet does not), the HIgh Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with “a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers”. iiNet has always maintained such issues should be handled by the police, involving a reasonable burden of proof that a user has infringed copyright.

“For these reasons, the Court held that it could not be inferred from iiNet’s inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the
appellants’ films by its customers,” wrote the Court.

iiNet CEO Michael Malone (pictured) has consistently called on the industry to come to a “workable” solution to piracy problems instead of litigating the issue. iiNet itself provides access to film and TV content through a bundled IPTV set-top box developed by a partner company, FetchTV. “I know the Internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone said in August last year. “We remain committed to developing an industry solution that sees more content readily and cheaply available online as well as a sensible model for dealing with repeated copyright infringement activity.”

However, AFACT and its member organisations haven’t been so keen. In July AFACT wrote to at least one local ISP requesting a meeting to discuss implementing an “automated processing system” for copyright infringement notices to be distributed to customers.

It is believed that AFACT considers early judgements in its case against iiNet to have opened the door for it to legally approach Australian ISPs about online copyright infringement, provided it supplied the right level of detail about the alleged offences. In mid-2011, a number of ISPs have confirmed the organisation has approached them about the matter. It is not yet clear how today’s judgement will affect the way AFACT interacts with the broader industry.

Currently, different ISPs take different approaches to the issue of online piracy, with some committing to forward on copyright infringement notices to users, followed by potential disconnection of their service, and others either ignoring the letters or forwarding them to law enforcement authorities.

iiNet and AFACT are also engaged in out of court talks regarding Internet piracy, with the Federal Attorney-General’s Department holding a series of meetings through late 2011 and early this year between iiNet, AFACT and other telcos, content owners and representative groups. However, consumer representatives have been explicitly barred from the talks, and the department has consistently declined — even through the Freedom of Information request process — requests by media outlets for more information about what is being discussed.

Australia’s division of the Pirate Party, a political movement which campaigns for digital rights and has been successful electorally in Europe, said in a statement that it should come as “no surprise” that it welcomed the ruling.

“We reiterate that ISPs behave similarly to the postal service – they are the carriers of the message, and that message should remain private,” said Brendan Molloy, Secretary of Pirate Party Australia. “It is not their business to police users, but merely to comply where necessary with authorities. ISPs are not, and should never be, responsible to anyone other than their subscribers and local law enforcement agencies.”

“However, this is not the end of the issue. We have continually protested against the closed-door meetings conducted by the Attorney-General’s department, in which industry representatives are given priority, and the public are ignored. The citisens of Australia are being refused participation in the ‘piracy debate,’ when they should be the most vocal of concerned parties,” Molloy continued. “Copyright is not just an issue for rights holders and service providers – the voice of the public must be given priority above all else.”

The response
In a statement released immediately following the judgement, iiNet chief executive Michael Malone thanked staff, customers, supporters and iiNet’s legal team, from law firm Herbert Geer, for their strong support throughout the case, and said the judgment supported the company’s position and proved the claims made against it were unfounded.

“iiNet has never supported or encouraged unauthorised sharing or file downloading,” Malone said. “Today’s High Court five-nil ruling confirms that iiNet is not liable for ‘authorising’ the conduct of its customers who engaged in online copyright infringement. This marks the end of more than three years of legal argument and challenges.”

Malone reiterated his view that “increasing the availability of lawful, online content in a more timely, affordable and reasonably priced manner”, brought the focus back to customers and was the best method to protect content owners’ copyright. He said there was strong evidence that content partnerships and agreements between ISPs, legal websites and copyright holders had done more to reduce ‘piracy’ and to showcase copyright holders’ materials than this unproductive legal battle.

“Increasing the availability of licensed digital content is the best, most practical approach to meet consumer demand and protect copyright,” Malone said. “We have consistently said we are eager to work with the studios to make their very desirable material legitimately available to a waiting customer base – and that offer remains the same today.”

In an interview with TorrentFreak prior to the judgement this morning, AFACT executive director Neil Gane said that regardless of the decision, “the landscape has changed”. “In the three years since the case commenced,” he added, “legislators, regulators and courts around the world have recognized that ISPs must play a central role in preventing online copyright theft.”

Both iiNet and AFACT will hold press conferences this afternoon to discuss the decision.

Opinion/analysis to follow once the dust has settled.

Movie Rights Group website shut down, VP leaves

Renai LeMay — Tue, 22 Nov 2011 01:51:02 +0000

news The website for controversial anti-piracy organisation Movie Rights Group has inexplicably vanished from the Internet and its vice president of sales and marketing has quit, leading to speculation that the organisation has been shut down for good.

MRG is a new organisation which was set up in Australia last year with the aim of protecting the copyright rights of content owners in the film industry. In mid-October it was revealed that MRG had approached every major Australian ISP seeking information on users who had allegedly infringed copyright online, initially seeking the details of some 9,000 Australians who it claimed had downloaded the film Kill the Irishman.

At that stage, the company’s then-vice president of sales and marketing Gordon Walker told Delimiter at the time, there were plans to broaden the company’s efforts to other films.

Unlike the other major Australian organisation representing the film industry, the Australian Federation Against Copyright Theft, Movie Rights Group had planned to take a different approach to piracy. Instead of legally targeting ISPs for the actions of their users, it was planning to seek to subpoena customer information from the ISPs and contact those who had allegedly infringed its copyright directly, looking to settle the matter out of court or through legal action.

The website had previously featured a prominent notice informing visitors that one of its chief services was settling lawsuits with Internet users who had allegedly infringed its clients’ copyright. However, Reddit users noted in the past several days that the organisation’s website had disappeared from the Internet.

In addition, Walker, who had acted as the company’s only known spokesperson, has updated his LinkedIn profile to note that he no longer works for the company as at November and was now a small to medium business development business consultant based in Brisbane. Walker has not responded to an emailed request for comment on the issue.

The disappearance of MRG’s website and Walker’s departure from the company have come after extensive press coverage on the company and its founders. In addition, national broadband provider Exetel has signalled it may modify its core business systems to make it more difficult for anti-piracy organisations such as Movie Rights Group to target its customers for allegedly illegally downloading content through platforms like BitTorrent.

opinion/analysis
Do I think Movie Rights Group has shut down permanently? I’m not sure. The situation is clouded at the moment. With no easy way to get in touch with the rest of the company’s owners or staff, and no real knowledge of what’s happened, I guess we’ll have to wait and see what chips may fall from this one. One thing I do know, however, is that websites don’t just disappear from the Internet for no reason.

If you do know what has occurred at Movie Rights Group, please feel free to use Delimiter’s anonymous tips line.

Pirate Party slams AFACT’s ISP “extortion”

Renai LeMay — Wed, 13 Jul 2011 01:49:03 +0000

The Australian arm of the Pirate Party late yesterday opened fire on the Australian Federation Against Copyright Theft, accusing the group of “strong-arm tactics” and “extortion” in its renewed approaches to local ISPs over the past few weeks on the issue of online copyright infringement through file sharing services such as BitTorrent.

AFACT has been engaged in a long-running battle with ISPs in an effort to get them to address piracy through their networks, with the most high-profile skirmish being its lawsuit against iiNet, which is believed to be headed for the High Court. iiNet has won several legal rounds against AFACT in the case, but in the latest judgment, onlookers commented that a mechanism may have opened up for AFACT to be able to request that ISPs disconnect those illegally sharing files online — if copyright infringement notices were issued in the correct manner.

In a recent letter to ISPs, AFACT requested that talks be opened on file sharing, noting it would proceed with an unspecified action if it did not hear from the ISP within a week. However, the Pirate Party, which broadly advocates for intellectual property legislative change and digital rights in Australia, isn’t impressed with AFACT’s move.

“These veiled threats are nothing more than intimidation tactics that once again clearly display the extent that Big Media will go to in their failing attempts to protect their flawed business models. Extortion is a new low even for AFACT.” said Pirate Party Australia acting secretary Brendan Molloy in a statement issued by the party yesterday.

“It is completely inappropriate to have closed-room discussions even before the iiNet court case has concluded, and even more inappropriate to make veiled threats to begin yet another court case for not attending these ‘voluntary talks’.”

Countries such as New Zealand and the US are implementing graduated response mechanisms to online copyright infringement by Internet users, which sees a number of warnings or ‘strikes’ given before action is taken. However, Molloy said such a scheme would not be implemented in Australia “without a fight”.

“Pirate Party Australia condemns this blatant example of legal strong-arm tactics, a reflection of the corruption and desperation at the heart of an industry that is refusing to embrace reality,” the party’s statement said. “ISPs have no obligations to take any action over unproven allegations of infringement by AFACT.”

“AFACT itself is known for sending legal threats based on nothing more than a recorded IP address. This practice blatantly ignores the realities of the average household, where the Internet connection is shared by parents, children, families and friends. Given the prevalance of home offices and work-at-home parents, if AFACT’s scheme were to be implemented, families could see their livelihood taken away when any person commits an act of copyright infringement using their home connection, proven or otherwise.”

The Pirate Party did appear to have made a factual mistake in its statement; incorrectly stating that AFACT’s letter had detailed a seven day response time for customers to respond to online infringement notices send to them through ISPs. In fact, the seven day response time referred to the period which ISPs had to respond to AFACT and initiate discussions with the organisation on a graduated response scheme.

“We can’t respond to extreme views based on misunderstanding and incorrect facts from the Pirate Party,” said an AFACT spokesperson in response.

Image credit: Penny Mathews, royalty free

Telstra, Internode tentatively back iiNet’s piracy authority

Renai LeMay — Mon, 21 Mar 2011 05:17:55 +0000

update Several of Australia’s major internet service providers have cautiously indicated support for a proposal unveiled by iiNet last week to set up an independent authority to administer allegations of copyright infringement by internet users.

iiNet’s vision would see an authority set up to manage the increasingly fractious relationship between ISPs, their customers and film, music and television studios. The authority would not focus on disconnecting users from the internet following infringements as some other countries are, but would have the power to issue fines and demerits to those who had purloined television shows, films and music online.

The move comes weeks after the conclusion of an appeal in the Australian Federation Against Copyright Theft’s two-year long court case raised against the ISP and won by iiNet — pending an expected second appeal to the High Court.

Most of the industry is remaining quiet on the issue, but several spokespeople did reveal a view this week — such as John Lindsay, Internode’s general manager of regulatory and corporate affairs. “Internode supports the model that iiNet is proposing and will continue to work with rights holders to promote legal content like FetchTV, iTunes and ABC iView to its subscribers,” Lindsay said.

An Optus spokesperson said the telco would to review this proposal in more detail before making any further comment. “However we do welcome proposals like this that try to address this important issue in a collaborative way,” they added. A Telstra spokesperson didn’t go into detail, but did note the telco supported the view put forward by telco representative body the Communications Alliance last week that iiNet’s proposal should be investigated further.

Last week, Communications Alliance chief executive John Stanton said the group and some of the nation’s largest ISPs had been meeting with “leading content owners” in recent weeks to explore whether an industry-led solution could be found to the “complex set of issues” around copyright infringement.

“We want to continue that dialogue and broaden the discussion to include other stakeholders to help address copyright concerns and foster greater access for Australian consumers to legitimate and commercially available online content”,” said Stanton in a statement last week, noting the model proposed by iiNet represented “a potential solution that warranted further study”.

“Whatever the solution, we believe it will be more robust and sustainable if it flows from a shared desire from content owners and ISPs to agree arrangements that benefit consumers and all sides of the industry,” he said.

If a solution was to be found to the issue, it would likely require the involvement of the Federal Government. A spokesperson for Communications Minister Stephen Conroy wasn’t available this afternoon to comment on the issue, but Conroy himself has previously stated that the industry was awaiting the result of the iiNet trial versus AFACT.

Image credit: Henning Buchholz, royalty free

iiNet’s piracy authority is only half a solution

Renai LeMay — Tue, 15 Mar 2011 21:37:03 +0000

opinion I have a confession to make: Like most outwardly normal middle class Australians, I have a dirty little secret that I can’t seem to expunge, despite my best intentions and numerous attempts at breaking its filthy addictive hold.

It’s a hidden problem which I have only admitted to my closest friends and family, something which keeps me up at night, moaning about ‘my precious’, wondering whether I will ever get free of its vice-like grip, or whether I will remain slave to its dominating power for ever, locked in thrall and unable to escape.

Yes, it’s true. I am absolutely addicted to cruising Valve’s Steam service looking for bargains on games which I will probably never have enough time to play.

As I’m sure many of you fellow addicts out there well know, Steam is a digital platform which lets you download video games to play on your computer. But it’s not just any digital platform. In fact, it is nothing less than a massive repository of almost every sort of PC video game that has ever been created, and publisher Valve is constantly adding both new and old titles to its library.

There are two reasons the service is so addictive.

Firstly, it appeals to the pack rat in me. Valve has an immense back catalogue of games listed in Steam — if you loved a PC game in your childhood, odds are the company has already added it to its list, or is talking with the game’s publisher to do so. And many of these titles regularly go on sale, especially around Christmas time, when, like a cackling evil Santa Claus, Valve conducts a massive series of sales designed to bankrupt every PC gamer and fill its pockets with fat stacks of diamond-encrusted thousand dollar bills.

Because you know the games on Steam will only be on sale for a brief period, there is a huge incentive to pay for it right then and there and keep it installed on your computer … even if you will never actually play it.

The second factor is just as dangerous for the addictive personality.

Valve regularly lists upcoming titles on the front page of its disgustingly attractive online store. What this means is that for months before a game actually goes on sale, you will log in every day to see screenshots of that game staring at you in the face, glistening like a vision of honey-coated perfection. You don’t want to pre-order them, because you don’t even know if they’ll be that good. But you still will — often for a paltry 5 percent off their cover price — because after staring at a game promotion every day for months on end, you always end buying it.

I narrate this story to demonstrate why iiNet’s compromise proposal yesterday on the issue of internet content piracy is only a halfway solution.

On paper, iiNet’s solution makes sense; by setting up an independent authority to handle copyright infringement disputes and dole out minor punishments the same way traffic police dish out speeding fines, both ISPs and film, movie and music studios get a more reliable way to tackle internet content piracy — an activity which is, after all, against the law — despite the fact that that law is completely unenforceable.

And the actual customers won’t have their internet disconnected for offences which are, after all, relatively minor in modern Australian society, earning themselves mere slaps on the wrist instead.

However, the problem with iiNet’s scheme is that its ‘traffic police’ analogy is far from apt for the situation which Australians find themselves in with respect to watching TV and movie content.

Motorists who speed, cross double white lines or commit any other traffic offence don’t have to do so. If they want to avoid fines or even losing their licence, they can simply obey the law — drive safely, within the speed limits, signal correctly and don’t talk on their mobile phone while simultaneously eating a Big Mac and overtaking a semi-trailer.

But what legal option do Australians currently have if they want to get the latest TV shows and movies as soon as they are released overseas? Very few.

As iiNet notes in its own paper, film and TV studios use “staggered release dates and queuing distribution channels” to make sure that Australians always get the latest content later — sometimes six months or more later — than our US or European cousins.

In addition, when the content does arrive, often it’s only broadcast through certain TV channels at certain times; times when you may — imagine! — have to work or carry out some other responsibility, and thus be prohibited from consuming it. Sure, you might be able to digitally record the broadcast, if you knew it was on, but I’m not sure whether even that common practice is completely legal.

As iiNet noted in its paper, this approach creates “a frustrated and unsatisfied market” — and one that is often resigned to simply bulk-renting DVDs six months after their favourite TV show has hit the US, if they want to keep within the boundaries of the law. Online DVD rental service Quickflix is thriving for a reason.

The same frustration is currently felt by other content sectors … as the scores of Australians who cannot quite get the eBooks they want will attest.

If a piracy authority is established, but the gates of content are not opened and geographical restrictions erased, this frustration will exponentially increase. Australians will be unable to get the content they want in a timely manner — legally or illegally — and will make that frustration known. The current safety valve which exists in the BitTorrent peer to peer file distribution system will cease to let off the nation’s steam.

The Baby Boomers, Generation X and other older generations may put up with this, more or less. But the simple reality is that Generation Y will not. The younger generation (well, I say younger, but some of them are almost 30) will howl with rage if they cannot get what they want, when they want it.

This war will not be unlike the constant series of running battles the video game industry is fighting with the Federal Government over the need for an R18+ rating, or the seething discontent that Communications Minister Stephen Conroy created with his internet content filter project.

Going back to where we began, the irony is that the TV and film industry has a way to get around this potential public relations and political nightmare. It can simply create a platform like Steam, where new and old content is constantly added to an easily accessible online library instantly accessible by anyone in the world from any device.

It can even charge a premium for such a service. Packrats like me would pay to collect all of the episodes in dozens of series, and many directors’ complete cinematic back catalogue … just in case we might watch it one day.

Especially during those demonic Christmas specials.

Image credit: Andronicus Riyono, royalty free

iiNet: Judgement vindicates our stance

Renai LeMay — Thu, 04 Feb 2010 01:43:16 +0000

Australian ISP iiNet this afternoon said its victory in the Federal Court was a vindication of the claim that it had never supported or encouraged illegal behaviour amongst its users.

Justice Cowdroy today handed iiNet a sound victory in the Australian ISP’s long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers using the BitTorrent file-sharing platform.

“We have never supported or encouraged breaches of the law, including infringement of the Copyright Act or the Telecommunications Act,” the ISP said in a statement following the judgement. “Today’s judgement is a vindication of that, and the allegations against us have been proven to be unfounded.

The ISP said the judgement marked “the end of the matter” and it would get on with its busness, noting it had continued to grow customers and revenue during the trial, as well as launching products and signing agreements with a number of content providers.

“We are eager to engage with the film industry and copyright holders to make this material legitimately available,” the company said.

iiNet had suspended trading of its shares on the Australian Stock Exchange this morning while the judgement was handed down. However, upon resumption of trading this afternoon, the company’s share price immediately rose by 11.11 per cent. At the time of publication it was trading at $2.20.

Look out for our one on one interview with iiNet chief executive Michael Malone later today.

Judge: iiNet did not authorise infringement

Renai LeMay — Wed, 03 Feb 2010 23:41:49 +0000

The studios first dragged iiNet (and its chief executive Michael Malone, pictured) into the Federal Court back in November 2008, arguing that the ISP infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers copying films and TV shows over its network.

However, in a packed courtroom in Sydney today, Justice Cowdroy said he found that iiNet did not authorise the infringement of the studios’ copyright.

“The mere provision of access to the internet is not an authorisation of infringement,” he said.

Cowdroy made it clear that the means of infringing the studios’ copyright was the use by iiNet customers of the BitTorrent file-sharing system. “iiNet has no control over BitTorrent,” he said.

The judge added that the notification scheme proposed by the studios and their representative, the Australian Federation Against Copyright Theft (AFACT) for ISPs to notify their customers of a breach of copyright and take action such as suspending or terminating their accounts was not a reasonable process.

While the judge noted that his reasons for making the finding were “complicated and lengthy”, they hinged on the idea that iiNet had done no more than provide an internet service to its users.

This differed from the previous Kazaa case, Cowdroy said, in that the Kazaa organisation was encouraging its users to breach copyright.

Cowdroy noted separately that the Telecommunications Act would not have prevented iiNet from acting on the AFACT notices of infringement, as iiNet had claimed. However, he noted that this fact did not end up being relevant to the case as iiNet did not authorise a breach of copyright.

Similarly, Cowdroy noted iiNet did have a repeat infringer policy for its customers, and would have been entitled to shelter under the ‘safe harbour’ provisions of the Copyright Act. However, similarly as iiNet did not authorise the infringement of copyright, this was not revelant to the case.

Ultimately, Cowdroy concluded that there was enough evidence to show widespread copyright infringement occurring “worldwide”. However, he said this cannot necessitate or compel a finding of authorisation of infringement of copyright in the case, and said the infringements of copyright were “significantly” less than AFACT had alleged.

The justice also found that when ISP customers used BitTorrent to download copyrighted material, they were making one copy only of the material. In addition, he pointed out BitTorrent itself could be used for legitimate purposes.

Cowdroy ordered that the studios’ application be dismissed and that they pay iiNet’s legal costs.

Image credit: iiNet

iiNet wins video piracy trial

Renai LeMay — Wed, 03 Feb 2010 22:51:47 +0000

Update: A comprehensive overview of the judgement can be found here.

Australian ISP iiNet was today announced as the victor in its long-running defence against a lawsuit by major film and TV studios represented by the Australian Federation Against Copyright Theft (AFACT).

Justice Cowdroy announced the verdict to a packed courtroom in Sydney today.

The studios first dragged iiNet into the Federal Court back in November 2008, arguing that the ISP infinged copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers copying films and TV shows over its network.

iiNet CEO Michael Malone (pictured) was among many to take the witness stand at the trial.

The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises and the Seven Network (Australian licensee of some of the infringed works).

The trial has been viewed by Australia’s ISP industry as a major landmark case to help determine how ISPs will react in future to users using their networks to download copyrighted material. iiNet had not been forwarding email communication from AFACT to users who AFACT had alleged had breached copyright, whereas some other ISPs have been complying with the request.

More information on the verdict to follow.

Image credit: iiNet

iiTrial ruling on February 4

Renai LeMay — Wed, 27 Jan 2010 03:26:26 +0000

news The Australian Federation Against Copyright Theft (AFACT) has confirmed an AustralianIT report that Justice Dennis Cowdroy will hand down his ruling in the organisation’s high-profile copyright violation case against ISP iiNet next week on Thursday 4th February.

The ruling comes suprisingly early for the case, which only concluded in court late last year after several months of fiery submissions from both sides.

The battle has been raging in the courtroom and in print since late November 2008, when AFACT, representing movie and TV studios Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc and the Seven Network, sued iiNet for letting its users allegedly download their copyrighted content (including films such as Batman: The Dark Knight) over the internet.

It is seen as a landmark case in Australia’s entertainment industry as content providers grapple with the ease of pirating their material via the internet.

An AFACT spokesperson confirmed the date of the ruling, while another AFACT spokesperson separately said the organisation was looking forward to the verdict but couldn’t comment further.