Australian High Court rules for iiNet against Hollywood

[weemadando]

The important part is that it appears to be establishing precedent that ISPs have the same legal protection as other carriage services against action due to misuse by users.

Hollywood loses final appeal in piracy case
Ben Grubb


A damaging blow has been dealt to the giants of the film industry in the High Court today after it decided to dismiss their copyright infringement appeal case against internet service provider (ISP) iiNet in a landmark ruling.

The High Court's five judges unanimously dismissed the appeal. In a summary the court observed that iiNet "had no direct technical power" to prevent its customers from illegally downloading pirated content using BitTorrent.

But copyright law experts say the case is not the end of the story as more ISPs could be targeted in future and pressure will remain on internet providers to do something about piracy on their networks.

Today, the court said iiNet's power to prevent customers from pirating movies and TV shows "was limited to an indirect power to terminate its contractual relationship with its customers".

Further, the High Court judges said that infringement notices sent by the film industry to iiNet did not provide the ISP "with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers"'.

If the film industry had won, the decision had the potential to impact internet users and the internet industry profoundly as it sets a legal precedent surrounding how much ISPs are required to do to prevent customers from downloading movies and other content illegally.

iiNet CEO Michael Malone welcomed the ruling and said Hollywood should now focus on increasing the availability of lawful content in a timely and affordable manner. "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," he said.

The High Court dismissed the appeal with costs. iiNet said legal costs of the case to date were approximately $9 million and had already been expensed.

The film industry – and content owners more broadly – want ISPs to send warning notices and even disconnect customers from the internet following allegations of copyright infringement. The ISPs have long said that content owners already have sufficient remedies through the courts and it is not the job of the ISP to decide whether someone is guilty of content piracy. The courts have so far sided with the ISPs on this point.

Recently content owners and ISPs have been back at the negotiating table over this issue however it is understood that a consensus has yet to be reached. The Communications Minister, Stephen Conroy, has previously said that he was awaiting the outcome of the iiNet case before deciding whether new legislation was needed to crack down on illegal downloaders.

But just because iiNet won in the High Court does not mean ISPs will be off the hook and not responsible for piracy because experts say a previous judgment in the case paves the way for further lawsuits against ISPs.

Michael Speck, a copyright expert who ran the music industry's case against Kazaa, said: "In losing the case [the film industry] still got from the courts a clear road map for how to successfully prosecute ISPs in the future and the next ISP that is prosecuted will find it almost impossible to avoid liability."

Intellectual property lawyer David Moore, of legal firm Cornwall Stodart, said for now ISPs are not responsible for the infringing conduct of their users but he believes this will change.

"At some point if the level of infringement by a particular user is of a certain scale and is repeated then an ISPs will be expected to work with the copyright owners to take action and I feel that's the way that things are heading sort of based on the full Federal Court decision and now the High Court decision," he said.

"It's almost forcing ISPs to work with the copyright owners to cut out illegal downloads and the question of how they work together is perhaps somewhat grey. There's several issues floating around about the cost of putting in place, or the cost to an ISP of enforcing a policy that involves sending out warning notices and potentially terminating or suspending accounts."

But Hamish Fraser of Truman Hoyle Lawyers said: "I think most practitioners struggle with the idea that an ISP should be liable for the downloading of its users."

The suit against iiNet was first filed in November 2008 by a group of the biggest Hollywood studios including Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney, as well as the Seven Network.

The film studios had sued iiNet arguing that by not acting to prevent illegal file sharing on its network it was essentially "authorising" the activity and was therefore liable.

But after an eight-week Federal Court trial in 2009 that examined whether iiNet authorised customers to download pirated movies, Federal Court judge Justice Dennis Cowdroy found that in February 2010 the ISP was not liable for the downloading habits of its customers.

The studios appealed the decision, but again lost in a judgment handed down in February 2011 after two of the three Federal Court appeal judges sided with iiNet.

The studios then appealed to the High Court, which heard the case between November 30 and December 2 last year, and which delivered its judgment today.

- with Asher Moses

[Thanas]

The only ruling that could have been made IMO, unless you want to violate common sense.

[Alkaloid]

The Communications Minister, Stephen Conroy, has previously said that he was awaiting the outcome of the iiNet case before deciding whether new legislation was needed to crack down on illegal downloaders.

This is the alarming sentence. We are now in the unfortunate situation of the MPAA, through their local proxy AFACT and their 'friends' in the US government pressuring the Australian government to change their laws in order to staisfy American companies. Aided and abetted by Mr 'Secret Government Firewall Blacklist' Conroy. And they will likely pull it off too.

[Grumman]

The Communications Minister, Stephen Conroy, has previously said that he was awaiting the outcome of the iiNet case before deciding whether new legislation was needed to crack down on illegal downloaders.

This is the alarming sentence. We are now in the unfortunate situation of the MPAA, through their local proxy AFACT and their 'friends' in the US government pressuring the Australian government to change their laws in order to staisfy American companies. Aided and abetted by Mr 'Secret Government Firewall Blacklist' Conroy. And they will likely pull it off too.

On the other hand, he's already tried and failed once. Maybe people will get sick of his attempts to become tyrant of the internet.

[atg]

More to the point hopefully a) he can't do it before the next election and b) the liberals don't try the same thing after they (most likely) win the next election.