Original URL: http://www.theregister.co.uk/2012/04/20/iinet_piracy_isps/

ISPs facing global clamp down on piracy

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

By Phil Muncaster

Posted in Government, 20th April 2012 04:09 GMT

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."

Why the iiNet case matters

The iiNet case commenced in 2008, when the Australian Federation Against Copyright Theft (AFACT), a body that numbers Warner Brothers, 20th Century Fox, Universal, Walt Disney Pictures, Sony Pictures and Paramount among its members, commissioned a company to investigate iiNet users' online behaviour.

The investigation saw a customised BitTorrent client used to track behaviour and AFACT used the data gathered through this method to compile substantial dossiers describing alleged copyright infringement that it sent to iiNet every week for more than a year.

iiNet did nothing with these dossiers, but did suggest to AFACT that handing them to the Police sounded like a good idea.

AFACT eventually decided to initiate legal action, which it said was the only sensible thing to do given iiNet's intransigence.

That action was widely interpreted as bullying, as when the case reached Australia's Federal Court in 2009 iiNet was a junior telco. While it may have had nearly half a million subscribers, that was well short of the several million enjoyed by Australia's two dominant telcos, Optus and Telstra. The latter owns a third of Australia's sole pay television provider, making a legal battle with Hollywood commercial poison. The former also distributes content, even if it too is embroiled in copyright controversy.

The case was therefore assumed to be a case of deep-pocketed content players picking on someone without the ability to muscle up in a protracted legal battle, in the hope of scoring a precedent it could use elsewhere.

That tactic has now backfired three times, as iiNet won the original case and two AFACT-initiated appeals. The latest failure, in Australia's High Court, cannot be appealed.

AFACT is now painting the decision as proof Australia's Copyright Act needs revision, an idea the Court itself mentions in the judgement, which says “The history of the [Copyright] Act since 1968 shows that the Parliament is more responsive to pressures for change to accommodate new circumstances than in the past. Those pressures are best resolved by legislative processes rather than by any extreme exercise in statutory interpretation by judicial decisions.”

Big Content may get the precedent it wanted after all. ®

With Simon Sharwood