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ISPs facing global clamp down on piracy

Service providers told to up their game in spite of court win for Oz ISP

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Aussie ISP iiNET might have won the battle in a High Court ruling today but the war internationally is swinging in the favour of the copyright holders, with service providers facing increasing pressure to act on notifications of infringement, according to one legal expert.

The long-running lawsuit ended in victory for the Australian ISP after the court ruled that it had not “authorised” copyright infringement by virtue of failing to act in stopping its customers engaging in illegal P2P file sharing. We've a detailed analysis of the legal reasoning here.

However, Hong Kong-based Eversheds lawyer Sian Lewis told The Reg that the law is finally catching up with digital pirates across the globe and ISPs “can’t afford to sit back and relax”.

“In a lot of ‘big’ jurisdictions – the UK, Hong Kong, Australia and so on – in recent years the digital aspect and copyright have been emerging, but as usual it takes legislators a long time to address the issues. Things like the UK’s Digital Economy Act have put more onus on ISPs to deal with notifications,” she said.

“ISPs need to up their game to an extent. They don’t have to monitor content but if they know of an infringement they’ll need to take action.”

Hong Kong is still some way behind countries like the UK and US, she added, but is currently digesting the Copyright Amendment Bill 2011 which currently has provisions to make service providers liable for any copyright infringement unless they take “reasonable steps” to limit or stop the infringement “as soon as practicable”.

As always with these things, it will probably take a test case to establish exactly what reasonable steps are.

In any case, the judgement in Australia today will have limited influence on future rulings in similar cases outside the country, said Lewis.

“It’s ‘persuasive’, in legal terms, but obviously a judge wouldn’t have to follow [the decision],” she added.

“Places like Hong Kong and the UK can watch with interest but at the end of the day it is a decision affecting Australia.”

Frost and Sullivan analyst Pranabesh Nath agreed that the heat is being turned up on ISPs worldwide.

"The iiNet ruling is encouraging, but it is an anomaly in the general trend around the world where entertainment industry associations have been generally successful in lobbying governments to enforce strict policies of piracy enforcement, which usually involves the ISP to take on a policing role. Take a look at France, UK, the US as prime examples," he told The Reg.

"In the end, digital piracy is a multifaceted problem, one that is made worse by litigation. If you recall the early days of the US copyright enforcement drives, there were a few cases that were won by ISPs that were of a similar nature, but the overall trend has shifted in favor of associations such as MPAA and their supporting corporations. I believe we may see Australia go this direction as well."

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