Friday, April 20, 2012

The show goes on

notice to burglars
It has been an interesting week for copyright infringement actions. We have seen a conclusion to the long running dispute between Roadshow Films/AFACT and iiNet in Australia. We have also seen a couple of test cases emerge for New Zealand's three strikes law.

Roadshow Films

Today the highest court in Australia, appropriately called the High Court, dismissed an appeal by a bunch of film and television companies from a decision of the Full Court of the Federal Court of Australia. In Roadshow Films Pty Ltd & Ors v iiNet Limited [2012] HCA 16 (20 April 2012), the High Court found that internet service provider iiNet had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programmes.

It had already been acknowledged by all parties that there were 'stealsies' going on. The customers of iiNet had infringed copyright in films by making them available online using the BitTorrent peer-to-peer file sharing system.

The Australian Federation Against Copyright Theft (AFACT) had served notices on iiNet alleging that iiNet's customers had infringed copyright in films. iiNet did nothing.

In the High Court the appellants argued that iiNet had the power to prevent copyright infringement by issuing warnings and suspending or terminating customer accounts. They argued that the AFACT notices provided credible information of infringement. And they argued that once iiNet had this information, doing nothing amounted to authorisation of infringement.

The Court didn't agree. It observed that iiNet couldn't stop its customers using BitTorrent to infringe copyright. All it could do was terminate its contractual relationship with its customers.

The notices weren't that good either. The Court said the AFACT notices didn't provide iiNet with a reasonable basis for sending warning notices to individual customers threatening to suspend or terminate accounts.

I suspect the show will still go on and that ISPs will still be a target for actions of their users. The Full Court had observed that in some cases ISPs may well be found to authorise infringement of their users

Three strikes

Last year the New Zealand Government passed the Copyright (Infringing File Sharing) Amendment Act 2011. The Act creates a procedure for a rights holder to object to unlawful file sharing. A rights holder is able to ask an internet service provider (ISP) to send an infringement notice to the account holder. I covered this topic in an earlier blog post.

Infringement notices come in three forms: detection, warning, and enforcement notices. Put simply, if a person infringes copyright then, on a request from the rights holder, the ISP must send the account holder a detection notice. If the same person infringes the same rights holder’s copyright again, then, on request, the ISP must send a warning notice to the account holder. A third infringement of the same rights holder’s copyright will lead to the final notice, an infringement notice, being sent to the account holder.

This week we saw the first two final notices sent out. In both cases the Recording Industry Association of New Zealand (RIANZ) instructed ISPs Telstra Clear and Vodafone respectively to send the notices. Both notices contained allegations of illegal download of music.

In each case it will have cost RIANZ NZ$275 in disbursements assuming each case goes to the Tribunal. If successful the offender can be fined anywhere from NZ$275 up to NZ$15,000. Currently there is no provision to suspend an offender's internet account.

It makes me wonder who these customers are. They have presumably downloaded more than a single copyright work. And they have presumably made more than one copyright work available for download. But they have not taken any steps to mask their Internet Protocol (IP) address.

It will be interesting to see how these cases unfold.

Photo courtesy of author vistavision under Creative Commons licence.

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