We already covered the basics of the Australian court ruling
in favor of iiNet yesterday, but if you read the full ruling
you begin to realize what a well reasoned argument the judge made, and hopefully it can become the basis of future rulings on this particular topic. The judge clearly took the time to understand the actual issues, and understand how BitTorrent works, how the internet functions, and making sure that he didn't cut corners and assume that things in the digital world were exactly analogous to the physical world. It's one of the more clueful rulings you'll read. Michael Geist has highlighted a few sections
that do such a great job of explaining why ISPs should never be copyright cops. It's an argument that we've tried to make in the past
, but which the judge does quite eloquently. Basically, he notes that determining whether or not something is infringing is not easy
, and requires a sophisticated court, not the random claims of a right holder or the suspicions of some third party:
Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.
Furthermore, the court found that it's troubling to have ISPs cutting off users based on accusations, without a court weighing in on the actual details:
One need only consider the lengthy, complex and necessary deliberations of the Court upon the question of primary infringement to appreciate that the nature of copyright infringements within the BitTorrent system, and the concept of 'repeat infringer', are not self-evident. It is highly problematic to conclude that such issues ought to be decided by a party, such as the respondent, rather than a court. Copyright infringement is not a simple issue. Such problems as identified are not insurmountable, but they do weigh against a finding that the respondent could conclusively decide that infringement had occurred and that it had the relevant power to prevent by warning, suspension or termination of subscriber accounts, even if it had the technical capability to do so.
These arguments are important, though often brushed aside as meaningless by supporters of turning ISPs into copyright cops or expanding the concept of contributory or secondary liability for copyright. They claim "but of course people know what's infringing," when the truth is it's not that easy. A third party has little way of knowing whether or not content was released on purpose, or if it's use is fair use. Those sorts of things require a sophisticated legal analysis, done in a court -- not by the copyright holder with a demand that the ISP take action. It's great that this court recognized this issue clearly, and hopefully others will start to follow suit.