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Legal Top Stories
Potentially landmark file-sharing case reaches Aussie court
By CMU Editorial | Published on Wednesday 7 October 2009
This, I reckon, is quite interesting – despite the fact it comes from CMU’s copyright litigation file.
A court case has kicked off in Australia in which a coalition of film and TV companies are suing an internet service provider for failing to stop their customers from file-sharing. It’s an interesting new approach in trying to force net firms to take on a more proactive role in policing online piracy. Rather than lobbying politicians to introduce new laws to make ISPs liable, in some way, for file-sharing, the Australian film industry is arguing that net companies are already liable under existing Aussie copyright rules.
The coalition of content owners, under the Australian Federation Against Copyright Theft banner, allege that Perth-based iiNet is basically guilty of so called authorising (or contributory) copyright infringement for knowingly ignoring mass amounts of illegal file-sharing undertaken by its customers on its servers.
AFACT say they hired investigators who set up iiNet internet accounts and used them to share film content online. The claimants say they let iiNet know monthly about the infringement being conducted by the two investigators, but that the net firm failed to do anything about it. Even though their own terms and conditions say customers must not access illegal content, and therefore said customers could be disconnected as a result of being in breach of contract.
It’s an interesting case, because it potentially expands the concept of authorising infringement to internet service providers. It was that legal concept – or variations thereof – that were successfully used in litigation against Napster and Grokster in the US, Kazaa back in Australia, and The Pirate Bay in Sweden.
However, authorising infringement as a concept generally relies on case law for precedent – ie actual copyright law says very little about it – and courts have generally been nervous about extending liability to any technology companies whose products or services have and are primarily marketed for their legitimate uses, even if some or many people use said products and services to infringe.
Most legal experts doubt ISPs could or would be held liable for their customers’ copyright infringement under most current copyright systems, which is why European movie and music companies are lobbying for laws that specifically oblige ISPs to play a role in policing piracy.
But it remains to be seen what the Australian courts make of AFACT’s claims. iiNet are expected to say there are all sorts of privacy issues which prevent the net firm from tracking a user’s file-sharing activity, which is a common defence used by ISPs when they are accused of doing too little to combat piracy. I suspect they will also talk about “flood gates” – if you make ISPs liable for file-sharing where does it stop?
The net firm’s MD says he is confident his company will win the court case. He told reporters: “I am proud of iiNet’s long and strong record of being a good corporate citizen and an even better ‘copyright citizen’. I welcome the commencement of the court proceedings and look forward to clearing our name”.
Even if the Australian courts do find in favour of the film companies, it is debatable whether that would set any precedent elsewhere in the world. It wouldn’t in America, where the Digital Millennium Copyright Act specifically provides protection for ISPs in this regard. In Europe, where copyright legislation isn’t very web compliant, it could be an option – though lobbying politicians for the addition of a clear three-strikes system on the statute book is probably a stronger option, despite the controversies surrounding the proposals.
Of course whether any of this will actually have a major impact on file-sharing – ie even if ISPs are forced to suspend or disconnect file-sharers through new laws or court victories, will that actually stop serial file-shares from file-sharing? – well, that’s another debate entirely.
