US and Australian movie and television studios have challenged a landmark court ruling in Australia that an Internet Service Provider (ISP) cannot be held accountable for illegal video downloads by its customers.
The studios want Internet providers to be punished if they don’t take “reasonable steps” to stop customers from downloading free copies of pirated movies, which costs the studios millions in profits. Without that legal risk, the ISPs have less reason to police their own network for potential copyright infringement.
The full bench of the Federal Court in February upheld a judge’s ruling that Australia’s third-largest Internet provider, iiNet, had not authorised the copyright infringements of customers who downloaded thousands of movies via the Internet’s leading file-sharing protocol, BitTorrent.
At the time, Judge Justice Dennis Cowdroy said the case was the first time a court had ruled on the question of whether an ISP should be liable for copyright violations by its users.
Tony Bannon, a lawyer for a group of 34 movie companies including Australian branches of Hollywood studios Universal Pictures, Warner Bros. and 20th Century Fox, told five High Court judges November 30 that iiNet had authorised the copyright violations of its customers by failing to take reasonable steps to prevent it. Bannon argued that authorising someone to infringe copyright was in itself an infringement of copyright. “If they don’t take reasonable steps, … then they run the risk of being an authoriser,” he contended.
The Australian Federation Against Copyright Theft (AFACT), representing copyright holders, began sending iiNet infringement notices detailing the unauthorised downloads and P2Pexchanges in 2008. AFACT requested that iiNet take action to prevent further infringements, but the ISP declined.
IiNet’s agreement with customers entitles it to cancel an account holder’s Internet access if that account holder infringes copyright, but the ISP has advised its customers that no account would be cancelled unless a court determined an infringement.
Should the High Court rule that iiNet is liable, the studios will apply for unspecified damages and injunctions against iiNet, Bannon confirmed. He nevertheless admitted that wording an injunction to specify what behaviour of iiNet should be stopped would “require extreme attention and ingenuity and may not be possible at all.”
The commencement of the court action comes shortly after Australian telco industry body Communications Alliance and five of the country’s largest ISPs, including iiNet, unveiled a scheme aimed at combating the growing problem of online copyright infringement. The scheme is designed to encourage a sustained and positive change in the behaviour of Internet users who engage in online activity that may be an infringement of copyright laws and potentially illegal under the Copyright Act 1968, typically via P2P file sharing or unauthorised content downloads.
The Scheme would require ISPs – in response to evidence provided by Rights Holders – to forward education and warning notices to customers whose Internet accounts have been detected undertaking activity that might infringe copyright laws.
However, the Australian Content Industry Group (ACIG) has said it will not ratify the plan. “ACIG does not think the scheme proposed by the Communications Alliance and its members creates a balanced process and it falls well short of the expectations we had had for an open, balanced and fair solution,” said ACIG spokesperson Vanessa Hutley.
The hearing is set to continue Thursday December 1.