Print 27 comment(s) - last by Lerianis.. on Mar 4 at 10:52 PM

While AFACT was unsuccessful in its lawsuit against ISP iiNet, the ruling has paved the way for the film industry to make ISPs accountable for warning and punishing users who download unauthorized films

An appeal case between major film studios and an Australian ISP regarding internet piracy has resulted in a dismissal in the Federal Court. However, despite this loss for the film industry, the judgment provided clues as to how these studios can improve copyright infringement notices sent to ISPs, thus encouraging internet providers to take action against users participating in unauthorized downloads.  

The film industry claims that it has lost $1.37 billion to piracy over a year's time, and that one in every three Australians has illegally downloaded movies from the internet. The industry blamed Australian ISP iiNet, and made a move by asking the Australian Federation Against Copyright Theft (AFACT) to represent them publicly and in a court case against the Internet provider.

Before the lawsuit began, AFACT used a firm called DtecNet to monitor iiNet users who were allegedly downloading films from the Internet using the BitTorrent protocol. AFACT then sent the IP addresses of those involved in Internet piracy to iiNet along with copyright infringement notices. The letter's AFACT sent to iiNet said that the internet provider could contact the users individually and warn them against further copyright infringement, or sanctions could be imposed on the user. AFACT did not specify what these sanctions would be, but according to Troy Gurnett, senior associate at law firm Middletons who specializes in intellectual property, AFACT may have ultimately wanted ISPs to terminate or suspend user accounts if they did not comply. AFACT noted that they never stated, "termination is reasonable or unreasonable." 

In response to the copyright infringement notices, iiNet believed it should not have to accept "the responsibility of judge and jury in order to impose arbitrary and disproportionate penalties purely on the allegations of AFACT." AFACT then took iiNet to court.  

Last week, the Federal Court dismissed the appeal case in a 2:1 ruling determining that iiNet could not be held liable for its users acts of copyright infringement. According to John Fairbairn, litigation lawyer and specialist in intellectual property and technology law at Clayton Utz, iiNet was not obligated to interfere with user activities. It was acting as an ISP should, providing internet services, and did not have to go beyond those duties based on AFACT's allegations. 

But the ruling didn't end there. The judgment also provided clues as to how AFACT could improve copyright infringement notices, which could lead to ISPs being held responsible for user activity by sending warnings to users who participate in unauthorized downloads 

"As it stands, [the judgment] opens the way for copyright owners to improve the quality of the notices they provide to ISPs and also potentially put in place a regime where they'll agree to meet [the ISPs] costs [to act on the notices]," said Fairbairn. "And if they meet those requirements, an ISP may then come under an obligation to either send warning notices to those users or to terminate the accounts of users that are repeat infringers." 

Three judges were involved in the case, where lead judge Justice Arthur Emmett stated that AFACT would need "unequivocal and cogent evidence of the infringement and some form of undertaking to reimburse the ISP for the costs of taking those steps and to indemnify it in the event termination of that user's account was unlawful.

"Mere assertion by an entity such as AFACT, with whatever particulars of the assertion that may be provided, would not, of itself, constitute unequivocal and cogent evidence of the doing of acts of infringement," said Justice Arthur Emmett. "Information as to the way in which the material supporting the allegations was derived, that was adequate to enable iiNet to verify the accuracy of the allegations, may suffice. Verification on oath as to the precise steps that were adopted in order to obtain or discern the relevant information may suffice but may not be necessary."

The ruling could lead to ISPs such as iiNet, Optus or Telstra being obligated to warn Australian customers of copyright infringements performed on their connection, and could possibly lead to termination of service as a result.  

"If AFACT or anyone else puts forward a workable proposal, we are of course prepared to examine it," said iiNet in a statement. 

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By formulav8 on 3/3/2011 12:17:52 PM , Rating: 2
How is it that these movie and music industries has so much power? They literally can get info and evidence that law enforcement wouldn't be able to get without jumping through many hoops.

For example WarnerBros is policing Youtube like it owns the place. You can see many videos removed and accounts closed because WarnerBros 'claimed' the user was violating their copyright. I'm sure me posting an episode of Scooby Doo is really stepping on Hanna Barbera's bottom line. You can be sure that WarnerBros policing has cost Much more than what they would have lost for someone posting a free episode of Scooby Doo...

RE: Honestly
By Solandri on 3/3/2011 2:45:21 PM , Rating: 2
I'm no friend of the movie studios, and agree that they've gotten way too much power to bypass the judicial system. But posting an entire episode is clearly a copyright violation. It does not matter whether you think they won't lose any money, or even if they don't lose any money. They own the copyright on it, so they get to decide, not you. If they're stupid about it they will go out of business, but it's their right to choose to be stupid, not yours.

If you want to post stuff to YouTube, don't take other people's work and post it there. Create some videos of your own and post it there. I don't say this to insult you. I say this because I believe this is the future of media. Instead of viewing things created by a few people but shared by everyone (TV), we're going to be able to view things created by anyone in the world and shared by everyone. Even this site is a reflection of that. 20 years ago, the only way what I wrote could be read by so many people was if I wrote a letter to the editor of a newspaper and they decided it was worth printing. Today, I just write, and people choose to read it - there's no newspaper or editor sitting in the middle deciding what can and cannot be heard.

That's the way to stick it to the movie studios - fight back by competing with them. Make your own videos to steal audience from them. Hasten their downfall to irrelevance. And best of all, it's completely legal.

RE: Honestly
By Lerianis on 3/4/2011 10:52:28 PM , Rating: 2
Solandri, when most of these things are already available for free in numerous other fashions that are LEGAL... perhaps it's just time for these companies to upload their offerings to Youtube themselves and get in on the 'ad dollars' on Youtube.

RE: Honestly
By someguy123 on 3/3/2011 3:31:31 PM , Rating: 2

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