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Copyright Act could defang infringement notices: iiNet

Day two of the ‘iiTrial’ in the High Court

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Yesterday’s proceedings in the ongoing “iiTrial” High Court appeal turned up an interesting problem in the copyright holders’ wish to turn ISPs into their enforcers: a savvy and funded user group could use Australia’s copyright law to prevent ISPs from issuing notices against them.

This issue emerged during submissions by Richard Cobden, senior counsel for iiNet, before the High Court (transcript here).

The problem arises because under Australia’s Copyright Act, someone accused of infringement (for example, by way of lawyer’s letters) has the right to demand that the accuser “put up or shut up”. A “groundless threats” action allows the accused to say “take me to court immediately, or stop harassing me”.

As noted by Justice Grummow in the proceedings, “You need not be the owner or licensee of the copyright to be on the wrong end of a threats action”, something which needs to be considered “in getting into this world of notices”.

According to Cobden, this would put an ISP in an impossible bind: the service provider has no way to establish that copyright even exists for a particular item, with the result that it would be in an indefensible position if a customer kicked back by way of a “groundless threats” action.

Cobden noted that this is particularly the case given what iiNet believes was the inadequate information provided by AFACT in the early days of its attempts to create a disconnection regime by sending “robot notices” on the basis of information provided by piracy detective company Dtecnet.

Whether the Dtecnet information was accurate or not, it offered no shield an ISP could hide behind, Cobden told the court, because AFACT only provided the Dtecnet reports on a confidential basis (indeed, much of the information remains bound by confidentiality agreements, with only redacted information made available in this appeal).

Yet another bind, Cobden told the court, is that ISPs would themselves have to breach copyright law to confirm that an accused user is actually an infringer.

“[T]here is no question that you cannot go on there [to BitTorrent] and have a look at what is going on without infringing copyright, so even later in the piece to have a look and a check and see if there are any iiNet people popping up, for example, still sharing Pineapple Express, we cannot do that without infringing copyright”, Cobden said.

Cut off the freetards!

Earlier in the day, while Tony Bannon (senior counsel for the studios) was winding up his argument, it seemed to become clear that while “three strikes” regimes are all the regime in legislated responses to piracy, that’s not the copyright owners’ favoured response:

Justice Hayne – “The relief which you seek, the only form of relief which you formulate today is relief that would require identified account holders to take down material with the threat of if you do not, we will cut you off.”

Bannon – “Effectively.”

Also appearing yesterday was Patrick Flynn, speaking on behalf of the Communications Alliance, the peak industry body for carriers and service providers in Australia.

Fynn argued that there is “no relationship” between ISPs and their customers that involves copyright, since ISPs did not issue any invitation to their customers to breach copyright.

Flynn argued that rights holders are demanding that ISPs become their enforcers because acting on their own behalf, the studios would not get users disconnected from the Internet: “copyright owners are seeking to use the ISP’s ultimate power of disconnection as an indirect way to enforce their rights. If the copyright owners had sued the user directly, the copyright owners would not have been able to obtain an injunction disconnecting the user from the Internet,” he argued.

If the case doesn’t run over time, final submissions should conclude at midday (Friday, 2 December). With the summer recess looming, a judgment probably won’t be delivered until next year. ®

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