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Legal
AFACT to appeal authorising infringement ruling
By CMU Editorial | Published on Friday 26 February 2010
The Australian Federation Against Copyright Theft has said it will appeal that previously reported court ruling regarding the liabilities of internet service providers to police copyright infringement undertaken by their customers via their servers.
AFACT lost its original case against Aussie ISP iiNet. Had it won it would have forced Australian net firms to become more proactive in stopping illegal file-sharing on their networks, basically forcing some kind of three-strikes system on the ISPs under existing copyright laws, rather than by writing new laws, as has been done in France and New Zealand, and is being done in the UK.
AFACT, which represents 34 Aussie film companies, announced its intent to appeal the ruling against it yesterday. AFACT executive director Neil Gane told reporters: “The court found large scale copyright infringements, that iiNet knew they were occurring, that iiNet had the contractual and technical capacity to stop them and iiNet did nothing about them. In line with [the] previous case law, this would have amounted to authorisation of copyright infringement”.
‘Authorisation’ is a concept unusual to English copyright law, and those copyright systems influenced by it, in particular in Australia and Canada. It is similar to the concept of ‘contributory infringement’, successfully employed in US cases against Napster and Grokster, though arguably isn’t as powerful in making those who provide technology that can be used by others to infringe liable for that infringement. Though that’s partly because the concept hasn’t been tested in court in many internet cases, or no internet cases in the UK. It could have been used in the Oink case, but prosecutors chose not to.
In Australia, the concept was successfully used in the Grokster-style litigation against Kazaa, which is possibly why AFACT think they have a case now. Though to use either the contributory or authorising concepts to make ISPs liable for the infringement of their customers is pretty unprecedented, and in the US copyright law specifically protects net firms from such claims.
Presumably with that in mind, iiNet CEO Micheal Malone said yesterday that he was confident his company would win any appeal, adding: “It is more than disappointing and frustrating that the studios have chosen this unproductive path. This legal case has not stopped one illegal download and further legal appeals will not stop piracy”.
