iiNet cleared of copyright breach
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Today BRR Media speaks with Miriam Stiel, she’s a Partner in the Intellectual Property Group at Allens Arthur Robinson in Sydney, welcome back to BRR Media Miriam.

Thanks David.

Now Miriam of course we’re talking iiNet’s decision which was handed down this morning in the High Court, what does the judgement mean?

Okay well yes it’s been an eagerly awaited decision, and the High Court today have found that iiNet is not liable for authorising the copyright infringing acts of its customers who have made pirate films available online.  So the film companies who brought the case had argued that iiNet should be found to have infringed the copyright in their films by authorising the infringing acts of their customers.  The Court acknowledged that widespread copyright infringement is occurring as a result of illegal peer to peer file sharing, but it didn’t consider that iiNet should be held liable for those infringements in this case.

Well certainly an eagerly awaited decision, a big day for iiNet and the industry.  But it’s the third hearing I guess, how is this judgement different from the earlier decisions at the trial level and then the Full Federal Court?

Okay well the outcome is the same as the earlier two decisions, in that iiNet has not been found to have authorised, although there are differences in the reasoning of the various judges who have heard the case.  So there were 5 judges who heard it in the High Court, they all came to the same conclusion so it was a unanimous decision, even though they delivered two separate judgements.  So the majority judgement which was 3 of the 5 judges, focussed on really what were the reasonable steps that iiNet should have taken upon receiving notices of alleged infringement from AFAC, which is the organisation that represents the film companies in Australia.  The Court emphasised that iiNet is not involved in the BitTorrent system which is what enable the peer to peer file sharing to occur, and also that it doesn’t host any infringing conduct, although it did have a contractual right to terminate a customer’s account if they infringed copyright.  However, the Court didn’t think in this case that it was reasonable for iiNet to have done that, that is terminate customer’s accounts on the basis of the notices that they’d received and given the risks that they faced if they did terminate.

And Miriam I’m sure not just for iiNet but all the ISPs will probably be popping the champagne corks, what does it mean for the IT industry?

Well look I’m not sure it quite justifies all ISPs popping the champagne.  It doesn’t mean that ISPs are off the hook completely, the court hasn’t said that an ISP could never be liable for authorising copyright infringement involving peer to peer file sharing, and it has actually left open the possibility that different circumstances might lead to a finding of authorisation.  I think it’s also interesting that the Court has mentioned that in other parts of the world there have been legislative schemes introduced to deal with this, you know, what’s a serious problem of copyright infringement in the online environment and so I think ISPs can expect that discussions and talks about possible legislative amendments will occur very shortly.

And just finally on the copyright owner side of things, what does it mean more generally for those copyright holders?

Well look I think it doesn’t represent a significant departure from the earlier cases of authorisation and the judges all referred to the fact that there is an important rationale for having secondary liability for authorises of copyright infringement, which is a much more efficient and lower cost way to prevent widespread infringement of copyright.  The judges did sort of – were a bit critical of the extent to which in other cases you know there have been different synonyms for what is authorisation, rather than looking at the word itself.  And so I think what the High Court’s really emphasised here is the flexibility of the test of authorisation, and the importance to look at each case on its own facts and circumstances.  So what I guess it means for copyright owners is that there’s not really any great certainty, in terms of what will constitute authorisation and continues to be a case by case assessment.

Well certainly it’s been an important decision and thanks again for your time today Miriam.

That’s my pleasure.

That was Miriam Stiel, Partner in the Intellectual Property Group at Allens Arthur Robinson in Sydney.  Listeners if you have any further questions for Miriam about this interview please send a message using the panel on your screen, or you can otherwise email through to law@brrmedia.com and we’ll forward your query.