iiNet Wins Again: Australian Appeals Court Says ISP Not Responsible For Copyright Infringers

Copyright

from the another-big-win dept

A little over a year ago, in a huge victory for common sense, an Australian court ruled against some Hollywood studios arguing that Australian ISP iiNet was legally liable for not magically blocking copyright infringement and punishing people the studios accused of infringement. As iiNet explained, it had no reasonable way to act. The studios would send notices to iiNet, but notices aren’t proof, so iiNet told them to go to the police:

They send us a list of IP addresses and say ‘this IP address was involved in a breach on this date’. We look at that say ‘well what do you want us to do with this? We can’t release the person’s details to you on the basis of an allegation and we can’t go and kick the customer off on the basis of an allegation from someone else’. So we say ‘you are alleging the person has broken the law; we’re passing it to the police. Let them deal with it’.

The court’s ruling was a great read, and very carefully laid out why it makes no sense for ISPs to be copyright cops, because determining whether or not something is infringing is a job for the courts, not some random company:

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.

Of course, the studios appealed — falsely telling the press that the original ruling would mean that unauthorized infringement was allowed in Austalia. But, of course, nothing was further from the truth. The ruling simply said that ISPs weren’t liable for the actions of their users, especially in copyright situations where it had no reasonable way to determine the veracity of claims from the studios.

Thankfully, the appeals court has once again sided with iiNet and dismissed the appeal, saying that it has no business being a copyright cop. The ruling again noted that there was no reasonable way for iiNet to know who was really violating copyrights, and “general knowledge” simply isn’t enough to put the liability on iiNet.

“I do not think the respondent could reasonably be expected to issue warnings, or to terminate or suspend particular accounts, in reliance upon any such notice in circumstances where it has been told nothing at all about the methods used to obtain the information which led to the issue of the notice,” Justice Nicholas said.

“Nor should it be up to the respondent to seek out this information from a copyright owner who chooses not to provide it in the first place.”

It’s expected that the anti-piracy group AFACT, who led this legal fight, will appeal to Australia’s high court, but in the meantime, it’s making a bunch of noise about how the government needs to step in and help. Given the sort of lobbying power we see on this issue (including massive diplomatic pressure from the US), don’t be surprised to see legal changes attempted on this issue quite soon. However, politicians would be wise to heed the points raised in the original decision about the silliness of putting the burden on ISPs rather than the copyright holders — the only ones who actually can reasonably do something in these situations.

Filed Under: australia, copyright, isps, secondary liability
Companies: afact, iinet, village roadshow