With all the fuss over the iiNet decision today, it might be easy to overlook another interesting copyright judgment that was handed down just a few metres away.

In Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29, the owner of copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’ successfully sued the Australian band Men at Work for infringing copyright in the musical work by reproducing the flute riff in its hit single, ‘Down Under’, which has become a kind of unofficial anthem for many Australians. Kind of ironic that the national spirit infringes copyright.

Update:The judgment has been released — more analysis coming soon.

Justice Cowdroy of the Federal Court of Australia has just handed down judgment in Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 24 (iiNet Case), finding in favour of the respondent. As you’re probably aware, the iiNet Case centres on allegations of copyright infringement in connection with unauthorised downloads of films by iiNet’s subscribers using the BitTorrent protocol. The decision confirms the safe-harbours enjoyed by internet intermediaries that prevent them from having to police internet content and limits their responsibility for users’ conduct. Some huge ramifications for Australian service providers were avoided today. From his Honour’s summary reasons:

“iiNet is not responsible if an iiNet user uses [the BitTorrent] system to bring about copyright infringement … the law recognises no positive obligation on any person to protect the copyright of another”

I’ll post a more detailed analysis of the judgment once I’ve had time to digest it fully. For now, the essential points from his Honour’s reading of the summary (as liveblogged and twittered from Courtroom 18C) seem to be as follows:  Read more »

The Australian Internet Industry Association (IIA) has invited internet service providers to attend a briefing on their copyright liability following the conclusion of oral argument in the Village Roadshow v iiNet case — judgment in which is expected early next year.

The briefing is designed to answer an interim question raised by the iiNet litigation: what should ISPs do between now and the final finding on liability? Doing nothing risks copycat legal action in the event that the rights-holders succeed. Changing infringement policies now looks bad and risks being bound by a higher standard than would be required in the event that iINet prevails. Further, the costs of doing something — monitoring customers, enforcing a repeat infringer policy, responding to take-down notices, and so on — should not be underestimated. Hopefully the IIA can offer some practical guidance to ISPs — particularly the smaller operators, who are undoubtedly troubled by the costly action iiNet has been forced to defend.

The iiNet trial continues. During argument yesterday, Cobden SC for iiNet argued that to require internet service providers (ISPs) to forward notices of copyright infringement to their subscribers would impose an unreasonable duty on ISPs to ‘police’ their customers. The issue arises in the context of interpreting the requirements for authorisation liability under ss 36(1A) and 101(1A) of the Copyright Act 1968 (Cth), under which a relevant factor is whether the defendant took ‘reasonable steps’ to prevent the infringement.

AFACT argues that in refusing to take any action in response to notices it received from copyright owners, iiNet cannot be said to have taken reasonable steps, and should be liable as authoriser. iiNet argues that it didn’t — and, indeed, couldn’t — take any steps because to act on the basis of information obtained during data transmission would place it in breach of the Telecommunications Act 1997 (Cth) (which prohibits secondary uses of carriage data), and would in any case be an ‘inappropriate and certainly unreasonable step’ that amounts to copyright enforcement being ‘outsourced to the ISPs’.

The studios were asking for a change to iiNet’s entire business model that would require complex systems and processes for handling thousands of infringement notices issued by music and movie owners around the world, he argued.

He also reiterated iiNet’s claim that parts of the Telecommunications Act bridged to privacy laws that prevented the company from “using” information on its systems to enforce the notices.  Read more »

See further

According to The Age, a fellow University of Melbourne alumnus has been convicted of three counts of commercial copyright infringement and fined $20 000 for running a duplication lab in (wait for it) his mother’s basement:

Jeffrey Lim, 28, converted the ground floor of his parents’ Doncaster home into a work office that held six hard drives, a computer flat screen, three printers, three DVD burners, three computer towers, four scanners and various printer cartridges.

Hmm, sounds like my living room, sans the printers. Lim apparently sold various console games for $4 each using an online mail order website. Ms Tickey for the Crown relied on a tipoff from a PwC investigator and evidence from a police raid of the premises:

The man, who deposited $714 in to Lim’s account, later found that none of the 138 Playstation2 games he received displayed any genuine features.

Gosh, how unexpected! $5 games turn out not to be originals. Unsurprisingly, Lim pleaded guilty. Mr Simpson for the defence argued in mitigation that the piracy business emerged after ‘repeated but failed attempts’ to gain employment in the computer industry. Guess a Melbourne BSc isn’t what it used to be.

Senator Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, has issued a stinging attack on iiNet’s position in Roadshow Films Pty Ltd & Ors v iiNet Ltd. Speaking at the CommsDay summit in Sydney yesterday, Senator Conroy described iiNet’s defence as something which ‘belongs in a Yes Minister episode’ — ironic, given that Conroy is himself the spitting image of Jim Hacker MP (case exemplar: ‘but Tony, publishing the blacklist would defeat the purpose of having a blacklist!’). Conroy opined:  Read more »

The Software Freedom Law Centre (SFLC) has commenced proceedings against Cisco Systems Inc, alleging copyright infringement. The plaintiff argues that Cisco distributed software subject to the General Public License (GPL) without meeting the terms of the popular open source licence. Specifically, FSF alleges that Cisco’s subsidiary Linksys sold networking products containing GPL software without making available the source code to end users, or disclosing the inclusion of embedded GPL code. The suit will probably settle soon:

“Cisco is a strong supporter of open source software. Cisco takes its open source software obligations and responsibilities seriously and is disappointed that a suit has been filed by the Free Software Foundation related to our work with them in our Linksys Division,” said the spokesperson. “We are currently reviewing the issues raised in the suit but believe we are substantially in compliance. We have always worked very closely with the FSF and hope to reach a resolution agreeable to the company and the foundation.”

The GNU General Public License (‘GPL’) is about to be tested in a United States court. Two developers have brought suit against a company using open source software in its commercial product without disclosing the downstream source code.  Read more »

According to this press release issued by the Attorney-General’s department on Friday, a search warrant was executed at the premises of a 21-year-old Sydney man, who was arrested on charges of commercial copyright infringement. The accused is alleged to have made a bootleg copy (‘cam’) of The Simpsons Movie with intent to distribute commercially.  Read more »

This piece is almost Onion-worthy for its obviousness. According to a study conducted by Bloomberg and the Los Angeles Times, teenagers don't understand copyright law. This is hardly surprising, given that most politicians -- heck, even lawyers -- exhibit similar deficiencies:  Read more »