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."

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 [austlii.edu.au]

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...

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 [austlii.edu.au]