Legal

Aussie rights holders lose second claim against net firms

By | Published on Monday 28 February 2011

AFACT

The Australian Federation Against Copyright Theft has lost an appeal against Aussie internet service provider iiNet in relation to that previously reported lawsuit in which the TV and movie industry trade body argued that net companies had an obligation under existing Australian copyright laws to take a more proactive role in policing online piracy.

Of course, in the UK, France, New Zealand and elsewhere, copyright laws have been changed to specifically force ISPs to help combat piracy, mainly by participating in three-strikes style systems. However, in both Ireland and Australia there have been attempts by rights holders to suggest such an obligation already exists under copyright law via the concept of contributory or authorising infringement.

In Australia, it was the concept of ‘authorising’ that made Sydney-based Kazaa liable for copyright infringement back in 2005 even though they didn’t host any of the actual infringed content shared over their networks. AFACT argued that the same principle puts a duty on ISPs to monitor and filter unlicensed content that moves across their networks, and that a failure to do so would make them guilty of authorising.

In the US the Digital Millennium Copyright Act specifically clears net firms of any such liability, but in Australia there is no such clarity in the law.

But when the case went to court this time last year AFACT lost, with the judge ruling that iiNet could not be held liable for any copyright infringement undertaken on their networks under the current Australian copyright system. The trade body appealed, but last week the appeals court backed the original judgment, with the three judge panel ruling two to one in the net firm’s favour.

There is another level of appeal still open to AFACT, though some would argue they and their counterparts in the music industry would be better off lobbying for a change in copyright law with regards online piracy, rather than trying to make a claim under existing ambiguous copyright rules written long before the internet came along.

Needless to say, iiNet boss man Michael Malone welcomed the ruling, telling reporters: “Today’s judgment again demonstrates that the allegations against us have been proven to be unfounded. We urge the Australian film industry to address the growing demand for studio content to be delivered in a timely and cost effective manner to consumers, and we remain eager to work with them to make this material available legitimately”.

Meanwhile AFACT Executive Director Neil Gane told reporters “it cannot be right” that the ISP takes no responsibility for copyright infringements on its network.



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