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 »

Some interesting comments from Michael Geist concerning the now-infamous Anti-Counterfeiting Trade Agreement (ACTA), which is being negotiated in secret by representatives of most developed countries. This piece considers the extent to which states party to ACTA would be required to amend their domestic laws:

most [representatives] have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country. With that in mind, we get:

• the European Union stating “ACTA will not go further than the current EU regime for enforcement of IPRs”
• the USTR maintaining that ACTA will not rewrite US law
• Australia’s DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA
• New Zealand stating “ACTA will not change existing standards”
• Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules

Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all. The truth is that ACTA will require changes in many countries that ratify the agreement. The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels. Meanwhile, US lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.  Read more »

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Incredibly, despite widespread public opposition, reasoned technical and policy arguments, and international condemnation by the Electronic Frontiers Foundation and others, the Australian government looks set to proceed with its misguided plan to censor prohibited internet content. In December, the government released details of how the censorship (euphemism of choice: ‘filtering’) scheme will work. It’s not pretty, but there are a couple of consolations tucked away in this announcement:

The Government will introduce legislative amendments to the Broadcasting Services Act to require all ISPs to block RC-rated material hosted on overseas servers.

This is good news for industry (given that there’s to be a filter at all). Because the scheme will be implemented by way of legislative change, ISPs will probably be able to rely on ‘compliance with law’ clauses in customer contracts to restrict their services, and also save face in comparison to a self-regulated industry scheme. This is also good news for democracy: subjecting the bill to proper parliamentary scrutiny is appropriate for a measure of this magnitude (it would arguably be improper — and would probably breach convention — to enact the measure through delegated legislation), making it more likely that the inefficacy and fundamental problems with this policy will be seen and corrected. Of course, given the ALP’s numbers in the Senate and House of Representatives, this may be of purely symbolic value.  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 »

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In an eminently sensible decision, Eady J has held that Google is not liable for defamatory material that appears in the extract displayed underneath search results.

Stated more precisely, Metropolitan International Schools Ltd v DesignTechnica Corporation [2009] EWHC 1765 (QB) now stands for the proposition that the facilitator of a defamatory imputation who, without human input or authorisation, causes that imputation to be conveyed without knowledge of its character, cannot be characterised as a publisher at common law. The case revolved around a forum thread (I do not endorse its contents) hosted on the first defendant’s website. That thread contained posts made by users alleging that the plaintiff’s distance learning courses were ‘nothing more than a scam’. The thread ranked highly (3rd and 4th) on searches for the plaintiff via Google.co.uk and Google.com. As is Google’s practice, the search results included extracts of matching text, including ‘Train2Game new SCAM for Scheidegger’ (you can see it here). The plaintiff argued that this was defamatory and commenced proceedings against DesignTechnica, Google UK and Google Inc.

Eady J held that Google Inc could not be liable, even assuming that the comment was defamatory, and accordingly ordered that an earlier decision allowing service outside the jurisdiction be set aside:

[48] I turn to what seems to me to be the central point in the present application; namely, whether [Google Inc] is to be regarded as a publisher of the words complained of at all. The matter is so far undecided in any judicial authority and the statutory wording of the [Defamation Act 1996 (UK)] does nothing to assist. It is necessary to see how the relatively recent concept of a search engine can be made to fit into the traditional legal framework …

[49] When a search is carried out by a web user via the Google search engine it is clear … that there is no human input from [Google Inc]. … It is performed automatically in accordance with computer programmes. … It is fundamentally important to have in mind that [Google Inc] has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user’s request unless it has taken some positive step in advance. There being no input from the Third Defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user’s screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.

For more details about this very interesting case, please continue reading.  Read more »

In the first example of its kind, the Supreme Court of the Australian Capital Territory allowed notice of default judgment to be served on a number of defendants via Facebook. According to court reports, Master Harper made an order for substituted service via Facebook, ordering that the defendants could be validly served by sending a message (presumably a wall post or personal message) to their ‘Facebook pages’ which notified them ‘of the entry of and the terms of the judgment’.

This is an interesting example of an emerging role for social networks: default communications intermediaries. Courts, litigants and even employers are increasingly turning to online profiles and messaging services to locate and monitor individuals that can’t be found in another medium. Often, this is because the individuals concerned forget that their status updates, image uploads, full names and often more are visible to the world. What makes this case particularly interesting is that Facebook is here acting as a conduit not merely for information, but for the coercive processes of the Court. If the defendants, having been served with notice of default judgment, fail to overturn or challenge its validity, it will become final. In the absence of an alternative method of service, Facebook is involved in a critical step along the path to a final remedy.