The internet is awash with comment on the copyright infringement action by Village Roadshow and others against iiNet.
When all is said and done, the court has to decide three legal questions.
In this article, CSP Central helps you to focus on the real issues.
First question: Did iiNet customers infringe copyright ?
This is foundational to the applicants’ claim. (In the Federal Court of Australia, where this claim is made, the party who starts the case is the ‘applicant’, not ‘plaintiff’. The party on the receiving end is the ‘respondent’, not ‘defendant’.)
The case against iiNet alleges that it authorised infringement by its customers. If the applicants can’t prove infringement by the customers, there’s no case against iiNet.
Second question: Is there something in the circumstances that changed iiNet into something more than a mere ‘data conduit’ ?
The Copyright Act protects an ISP from copyright claims if it ‘merely’ provides the facilities used to commit a breach.
That’s why a person who simply supplies a photocopier isn’t automatically liable for unlawful copying that occurs using it.
But if the provider goes further, or has some other involvement, or the circumstances are a bit different, that protection can easily be lost.
For instance, in one very important Australian case (‘Moorhouse Case‘), a university provided a photocopier in close proximity to books in a library. The court ruled that:
- The university should have known that this would probably result in some copyright breaches.
- The university did not adopt measures reasonably sufficient for the purpose of preventing infringements taking place.
- So the university was responsible for the breaches that did take place.
That kind of responsibility is called ‘authorising’ in law.
How the applicants will attack the second question
In the iiNet case, the applicants may rely on several arguments that iiNet was more than a ‘mere service provider’.
The key one that has emerged so far is that iiNet was provided with extremely detailed evidence that copyright infringement had taken place. Apparently, it went far beyond the standard notices that we’ve all heard about many times. It was practically the evidence for a full court case against certain customers.
The applicants will argue that an ISP with this level of detailed knowledge cannot claim the ‘mere service provider’ exception. By allowing customers to continue to connect in the full knowledge of what had happened and what was likely to happen, iiNet lost the protection of the ‘mere ISP’ provision.
The applicants will say that under the principles in the Moorhouse Case (and others) iiNet must be held to be an authoriser of breaches that did occur.
If the court agrees with that, then iiNet is legally responsible for the breaches as if it had copied the movies itself.
Third question: Is iiNet inside the ‘safe harbour’ ?
Australia’s copyright law contains a special protection for ISPs. It’s called the ‘safe harbour’ law.
It can only apply where the ISP has already been found ‘guilty’ of authorising copyright breaches. If it does apply, it prevents the court from ordering the ISP to pay damages – which is the biggest fear in a copyright case.
The ISP has to show that it is entitled to the protection of this law. It must prove that it satisfied the conditions that apply to it.
The safe harbour conditions
To claim the protection of the safe harbour, an ISP must show that:
- It adopted and reasonably implemented a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.
- It complied with the relevant provisions of any industry code relating to accommodating and not interfering with standard technical measures used to protect and identify copyright material. (This one’s easy … there is no such code in Australia yet.)
- Any transmission of copyright material was initiated by or at the direction of a person other than the ISP.
- The ISP did not make substantive modifications to copyright material transmitted. This does not apply to modifications made as part of a technical process.
The problem for iiNet here is the first test: a policy for terminating repeat infringers.
iiNet seems to consider that ‘infringer’ in this context can only refer to an ‘infringer as proven in court’, not a person alleged to be an infringer – no matter how strong the allegation.
If iiNet is correct about that, and if it does have a policy for terminating repeat infringers (as proven in court) then it can claim the protection of the safe harbour. It could not be ordered to pay damages.
If iiNet loses the infringement argument and the safe harbour argument, damages will be massive. We’ll explain why in a later post.
ISPs might want more detail
Here’s information about the ISP Copyright Safe Harbour Kit.