Is that AFACT? Copyright federation pursues its quarry to High Court

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.

Proceedings between 34 members of AFACT (the Australian Federation Against Copyright Theft) and the ISP iiNet (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 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: 

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 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 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

Appeal decision in Roadshow Films Pty Ltd v iiNet Ltd [2011] FCAFC 23 (24 February 2011) here

Telecinco v YouTube: a Spanish landmark?

Readers may by now be well aware of the decision of a Madrid court to dismiss copyright infringement claims brought against YouTube by Spanish television broadcaster Gestevision Telecinco SA. This decision is welcomed by YouTube's owner, Google, which is currently involved in similar copyright disputes in several European countries. According to the Wall Street Journal, Telecinco claimed that the posting of audiovisual content in which it owned copyright infringed its intellectual property rights, and that YouTube was liable when users uploaded copyright-infringing material. The court rejected those claims in a statement.  Telecinco has already said it would appeal.  Google is confident that it will carry on winning in court:

"The court recognized that YouTube is merely a content-hosting platform and should not be made to pre-screen videos before they are uploaded",

the online mammoth said, adding that the result was a "clear victory" for the company, which also has ongoing copyright infringement litigation in Germany, France, Italy, and Belgium (it lost in Germany but is appealing).  Merpel notes that the Guardian calls the decision a "landmark" ruling: she wishes people wouldn't use the word for first-instance decisions in disputes that go on appeal -- it's the final ruling that makes the landmark, since trial judges' decisions are often writ in water.

The IPKat's friend Carolina Pina (Garrigues Abogados), who coincidentally represented YouTube in the Spanish litigation, has kindly sent him a non-official English translation of the decision, which you can read here.

Spanish landmarks here and here ...
... but is this a Spanish landmark too?

The Eircom settlement -- just a Will o' the ISP?

Browsing through last week's World Media Law Report the IPKat spotted that the copyright infringement action brought in Ireland by recording companies EMI,SONY BMG, Universal Music and Warner against Eircom, Ireland’s flagship internet service provider, was settled at the end of January. The four rights-owners had sued Eircom under the Copyright and Related Rights Act 2000, seeking to restrain the ISP from infringing by making available copies of their recordings to the public through Eircom’s internet service facilities but without their consent. This made a change from the usual actions that were brought against individual illegal downloaders.

To the disappointment of many, the trial -- scheduled for four weeks in court -- only ran for eight days before it settled on terms (here) that Eircom would operate a “three strikes and you are out” regime against any of its customers who upload/download music illegally. Meanwhile, the record companies will deploy a service that poses as a P2P file sharer in order to entrap and identify illegal downloaders. Once Eircom gets the identified IP addresses, it will have to notify the fingered subscribers that they have been identified as infringers, warning them that unless the activity ceases their subscription will be disconnected -- the ultimate punishment.

The record companies had wanted Eircom to install special software to detect the unique “fingerprint” of illegal up/downloaded copyright music files but Eircom refused, saying it was not technically feasible and that it would have interfered with the operation of its network and services. As things stand, Eircom does not have to provide details of any of its subscribers who are suspected of copyright infringement to the music industry, since this would give rise to significant privacy and data protection implications.

The IPKat suspects that, in the long haul, this settlement will make very little difference to the vast majority of file sharers. Those who are law-abiding can sleep soundly anyway; the small-timers who infringe a little bit here and there remain below the threshold above which legal action makes sense for the copyright owners, while the serious infringers will exercise their ingenuity in order to persist in their activity, whether through multiple accounts, identity thefts or anything else. That's not to say that it's not important, though: it establishes the principle that at least one Irish ISPs is not merely a neutral carrier, but has a commitment to cooperate with the copyright owners. How far this principle can be meaningfully exploited by the recording companies will presumably become apparent over the next couple of years.

After Eircom, what about the other Irish ISPs? Click here for more
Has Eircom betrayed its subscribers? Find out here

U2 versus YouTube ...?

Courtesy of his good friend Simon Haslam (Abel & Imray), the IPKat reports on the BBC's account that rock band U2 manager's Paul McGuinness has urged internet service providers to help end illegal music downloads, pleading for the disconnection of those who acquire tracks illegally. Speaking at the Midem conference in Cannes, he emphasized that it was time for artists to stand up against what he called the "shoddy, careless and downright dishonest way they have been treated in the digital age". To blame are record labels and governments who "created a thieves' charter" by agreeing that ISPs should not be responsible for what passed along their networks, adding:

"If you were a magazine advertising stolen cars, handling the money for stolen cars and seeing to the delivery of stolen cars, the police would soon be at your door. That's no different to an ISP, but they say they can't do anything about it. If you steal a laptop from a store or don't pay for your broadband service, you'll soon be cut off and nicked".

The Internet Service Providers Association has always maintained that it cannot be held responsible for illegal peer-to-peer traffic because it is "merely a conduit" of such material.

Says Simon,

"If I recall correctly, U2 used to provide tapes (remember those?) with U2 music on one side but blank on the other so that you could tape someone else's music on to the blank side".

U2 position on taping here