[pp.int.general] Fwd: [The IPKat] Is that AFACT? Copyright federation pursues its quarry to High Court

[Amelia Andersdotter]

read /all/ of it.

-------- Original Message --------
Subject: 	[The IPKat] Is that AFACT? Copyright federation pursues its 
quarry to High Court
Date: 	Tue, 29 Mar 2011 01:37:13 -0700 (PDT)
From: 	Jeremy <jjip at btinternet.com>
Reply-To: 	jjip at btinternet.com
To: 	ipkat_readers at googlegroups.com



<http://2.bp.blogspot.com/-PuMm_t6726k/TZEKmLnMryI/AAAAAAAARpw/dd7eVM8hTWk/s1600/iinet.gif>
*Secondary liability on the internet is definitely the flavour of the 
month. *Yesterday night the IPKat reported on the liability of a search 
engine for contributory infringement of copyright -- and this morning 
the spotlight turns on Australia, where the question whether internet 
service providers (ISPs) are liable for the acts of their subscribers is 
set to get the country's top judges scratching their heads as they seek 
the right answer.  Thanks to the Kat's friend Catherine M Lee, this 
weblog can bring you the following information:

    "Are Australian ISPs liable for the copyright infringements of their
    subscribers? The High Court, the top court in Australia, may soon be
    asked to give an answer.

    <http://2.bp.blogspot.com/-mfHtX3vNsCQ/TZEKc-EQDbI/AAAAAAAARps/HZBEiZ4Fs2w/s1600/afact.gif>
    Proceedings between 34 members of *AFACT
    <http://afact.org.au/the-law.html>*(the Australian Federation
    Against Copyright Theft) and the ISP *iiNet
    <http://www.iinet.net.au/index.html>*(the third largest ISP in
    Australia) have been ongoing for over two years and attracted
    considerable interest in Australia and overseas. AFACT had
    investigated copyright infringement occurring by means of a
    peer-to-peer system known as the *BitTorrent
    <http://www.bittorrent.com/>* protocol by subscribers and users of
    iiNet’s services. The information generated from these
    investigations was then sent to iiNet by AFACT, with a demand that
    iiNet take action to stop the infringements occurring, though the
    measures AFACT asked iiNet to take were not clearly stated. iiNet
    failed to take any steps to stop infringing conduct. Did this mean
    that iiNet had authorised the copyright infringement of certain users?

    In November 2008, numerous AFACT members commenced legal proceedings
    against iiNet. The case came before Cowdroy J sitting in the Federal
    Court, commencing in October 2009 and lasting for 20 days. In
    February 2010, Cowdroy J found that iiNet did not authorise the
    infringements of copyright of the iiNet users. His Honour reached
    this conclusion following three primary findings: 

    <http://3.bp.blogspot.com/-qqgwxVNlmLs/TZEK5Ds-LFI/AAAAAAAARp0/k_ZGIYDYaPU/s1600/BitTorrent.jpg>

        1. the mere provision of access to the internet was not the
        ‘means’ of authorising infringement. Rather, the ‘means’ by
        which the AFACT members’ copyright is infringed is an iiNet
        user’s use of the constituent parts of the BitTorrent system,
        something over which iiNet has no control or responsibility.
        2. a scheme for notification, suspension and termination of
        customer accounts was not (in this instance) a relevant power to
        prevent copyright infringement or a reasonable step to take.
        3. iiNet simply cannot be seen as sanctioning, approving or
        countenancing copyright infringement: iiNet has done no more
        than to provide an internet service to its users. 

    The AFACT members appealed to the Full Federal Court. This appeal
    was dismissed by the majority (Nicholas and Emmett JJ, Jagot J
    dissenting) in February 2011. However despite this, the AFACT
    members ended up in a stronger position than they were following the
    first instance decision of Cowdroy J. The main reasons for this were
    that: 

        1. Emmett J in effect also ruled that, in certain circumstances,
        ISPs would be obliged to act on infringement notices when
        provided with ‘unequivocal and cogent evidence of the alleged
        primary acts of infringement by use of the … service in
        question’ or be considered to have authorised infringement (at
        [210]).
        2. All the justices agreed that iiNet could not protect itself
        by claiming that it was a "Safe Harbour" for it did not have a
        policy to deal which allowed for termination of repeat
        infringers in appropriate circumstances (Emmett J at [272],
        Jagot J at [524], Nicholas J at [803]).

    Nonetheless, on Thursday 24 March 2011, the members of AFACT
    indicated that they would seek leave to appeal to the High Court. In
    a *press release
    <http://afact.org.au/pressreleases/pdf/2011/AFACT%20Media%20Release%2024.3.11.pdf>*
    issued on behalf of the Australian and US film studios, AFACT
    Executive Director Neil Gane suggested that the appeal would make
    the case that the Full Federal Court had incorrectly applied the
    legal test for authorisation and that iiNet did have sufficient
    knowledge of the acts of infringement committed by its subscribers.
      iiNet's response to this move, reflected in its own *media release
    <http://www.iinet.net.au/press/releases/110324-court-challenge-wont-stop-illegal-downloads.html>*of
    the same date, is that more litigation is not a solution and that it
    is time for the studios to work with the internet industry to make
    their works more readily and cheaply available online".

The IPKat looks forward to a High Court decision on the thorny issue of 
the responsibility for ISPs for copyright infringement committed by 
their subscribers in light of the new ISP provisions in the Copyright 
Act 1968 introduced as a result of the Australia-US Free Trade 
Agreement. Merpel however wonders whether it is a task for parliament 
and not the courts to make downloaders accountable for their infringing 
actions without imposing burdensome requirements on ISPs.

_Sources_
First instance ruling in /Roadshow Films Pty Ltd v iiNet Ltd/ [2010] FCA 
24 (4 February 2010) *here 
<http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html>*
Appeal decision in /Roadshow Films Pty Ltd v iiNet Ltd /[2011] FCAFC 23 
(24 February 2011) *here 
<http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/23.html>*


--
Posted By Jeremy to The IPKat 
<http://ipkitten.blogspot.com/2011/03/is-that-afact-copyright-federation.html> 
on 3/29/2011 09:37:00 AM --
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