[Chapter-delegates] Australian court rules in favour of Internetservice provider

[Tony Hill]

Hi Christine

Not sure if anyone else picked up the question in your P.S. below, in  
discussion on this list.

I think that the applicants were 'very disappointed' at the judgement  
and its implications for them, and I believe they made this clear in  
their media comments.  In among that comment was contemplation of an  
appeal to a higher court in Australia.

In discussions with colleagues, I formed the view that it would not be  
wise for the applicants to seek to appeal in Australia.  (Indeed, from  
my perspective it would be better for them to seek to cooperatively or  
competitively develop new business models that take account of the  
rights of copyright holders and Internet users for the benefit of  
all...but I am not them).  They have now received a judgement from one  
court in Australia (that was not to their liking).  To a certain  
extent, that provides a worldwide legal precedent on this issue (again  
not to their liking).  If they appeal that decision in the same  
jurisdiction, then it may have the effect of strengthening the  
worldwide precedent (not to their liking).

Their better option may be to seek a different judgement in a  
different jurisdiction, to at least cloud the issue or rearrange the  
international precedent.  In other words, watch out for actions in  
other countries around the world.

regards, Tony Hill
ISOC-AU


On 05/02/2010, at 7:55 PM, Christine Runnegar wrote:

> Thank you Narelle for your excellent summary and analysis of the  
> iiNet case.
>
>
> No small feat, particularly given the many complex issues covered in  
> the
> 200+ page judgment!
>
> Great media release too. Compliments to ISOC-AU.
>
> This case and your analysis will also be of great interest to the ISOC
> Working Group on emerging policy responses to 'online piracy'.
>
> There are lot of things happening around the world in the Internet  
> policy
> space every day. Reports like this really help us stay on top of  
> what is
> happening in the local and regional space. Thanks!
>
> Best regards,
> Christine
>
> P.S. Any word as to whether Roadshow Films Pty Ltd or any of the other
> applicants will be filing an appeal?
>
> ______________________
>
> Christine Runnegar
> Public Policy Manager
> Internet Society
> Galerie Jean-Malbuisson 15
> CH-1204 Geneva
> Switzerland
>
> Tel: +41 22 807 1455
> www.isoc.org
>
> -----Original Message-----
> From: chapter-delegates-bounces at elists.isoc.org
> [mailto:chapter-delegates-bounces at elists.isoc.org] On Behalf Of  
> Narelle
> Sent: 4 February 2010 4:49 AM
> To: chapter-delegates at elists.isoc.org
> Subject: [Chapter-delegates] Australian court rules in favour of
> Internetservice provider
>
> All
> In Nov 2008 a group film industry players lodged a claim against an
> Australian ISP arguing it had infringed copyright by not cutting off  
> users
> downloading copyright material. The Australian Federal Court today  
> ruled
> against the film industry, saying:
> iiNet did not authorise copyright infringement because 1.  
> infringements
> occurred directly as a result of the BitTorrent system, not the use  
> of the
> Internet and this ISP does not control the BitTorrent system, 2.  
> this ISP
> did not have the power to prevent those infringements occurring, and  
> 3. this
> ISP did not sanction, approve or countenance copyright infringement
>
> The film industry had commissioned a third party to investigate  
> copyright
> infringement from use of the BitTorrent protocol by iiNet's  
> subscribers.
>
> "AFACT employed a company known as DtecNet to investigate 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. The measures which AFACT requested iiNet perform were never
> precisely elucidated. However, as the evidence at trial indicated,  
> AFACT
> wanted iiNet to send a warning to the subscriber who was allegedly
> infringing. If a warning was not sufficient to stop the  
> infringement, AFACT
> intended that iiNet suspend the internet service of that subscriber.  
> If the
> subscriber remained unco-operative, termination of the internet  
> service was
> sought as the ultimate sanction. In addition, or in the alternative,  
> the
> applicants suggested that iiNet should block certain websites."
>
> It is these steps that ISOC-AU took exception to as it seems a  
> denial of due
> process of law.
>
>
> Full text of the judgement can be found at:
> http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html
>
> iiNet's response:
> http://feedproxy.google.com/~r/iinetmediareleases/~3/sbX8VqvlU9I/ 
> 20100402-fe
> deral-court-judgement.pdf
>
> here is the film industry's response:
> http://www.afact.org.au/pressreleases/2010/4-02-2010.html
>
> There are now a number of press articles out which a search will  
> lead you
> to.
>
>
> MEDIA RELEASE
>
> ISOC-AU applauds today's decision of the Australian Federal Court in  
> the
> case of Roadshow Films Pty Limited v iiNET Limited. The Court found  
> that
> iiNet, by failing to take any steps to stop infringing conduct, did  
> not
> 'authorise' copyright infringement by certain iiNet users.. iiNet  
> did not
> sanction, approve or countenance copyright infringement; they did no  
> more
> than provide an Internet service to their customers.
>
> ISOC-AU believes the Internet is for everyone. 'The Internet is an  
> essential
> part of how Australians live, work and play', said Narelle Clark, Vice
> President of the Internet Society of Australia (ISOC-AU) 'and the  
> Court has
> confirmed that ISPs are not required to be the gatekeepers of  
> Internet use'.
>
> ISOC-AU also welcomes the finding of the Court that, because iiNet  
> did have
> a repeat infringer policy, they would have been entitled to the  
> protection
> offered by the 'safe harbour' provisions of the copyright legislation.
>
> ISOC-AU recognises that people should be rewarded for their creative
> endeavours and that other models may need to be used or developed to  
> reward
> content creation and distribution. We also support the right of all  
> to due
> process under law, particularly to ensure that Internet users are not
> arbitrarily cut off from Internet access.
>
>
>
> --
>
>
> Narelle Clark
> Vice President
> ISOC-AU
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