Roadshow v iiNet 2

Last month, iiNet (by the skin of its teeth) avoided being found liable for authorising the P2P infringing activities of users of its internet access services.

Kim Weatherall and Ass. Pro. David Brennan provide their respective initial takes here and here.

Perhaps in recognition that iiNet (and pretty much any other ISP) will be in big trouble if they sit on their hands when the next letter of demand comes in from AFACT notice comes in, Meanwhile on 11 March, the Internet Industries Association has announced that it is “fastracking” development of an industry code to deal with copyright infringement.

Copyright reform agenda

The Commonwealth Attorney General’s opening address to the Blue Skies conference is here.

Some excerpts:

International reforms:

While recognising that the challenges of the digital era are a global, not just national, issue, the Attorney General identified access to cultural works by the visually impaired as an area for early action:

An example of one area in which I am particularly keen to see a result this year in the international arena is overcoming copyright barriers for visually impaired people in accessing copyright works in suitable formats. I understand that internationally, only five per cent of all works are available in accessible formats for the visually impaired.  This is an unacceptable statistic and an acute problem for developing countries.

If there were hisses and boos from the audience, let’s hope it was for the right reasons!

On the domestic front:

  • a straight bat played to yesterday’s iiNet decision
  • a consultation paper will be released soon on who should be the beneficiaries of the ‘safe harbour‘ regimes, currently limited to the indecipherable “carriage service providers

For example, the definition excludes entities that do not provide network access but provide online services – Google and Yahoo are obvious examples of this category.

(That is the Attorney General’s example, not mine.)

  • possible introduction of a new “ad hoc” exemption to the technological protection measures (see e.g. s 116AN(9))

The Copyright Advisory Group has approached me for an additional exception to allow circumvention of technological protection measures for certain education purposes.

In particular they have sought an exception that would allow schools to change the format of films from DVD to MP4 for teaching purposes.

It would seem that what is to be referred still involves considerable clarification. One area flagged:

I believe there would be merit in examining some exceptions under our law in the context of the online environment and whether the correct balance exists.

Another which the ALRC will not be allowed to cut across:

It will be important to not duplicate work undertaken by Government on various policy issues, or in the course of related reviews -for example the Government’s Convergence Review.

So, it seems the Convergence Review will not just be “regulatory”.

Lid dip: Jane Treleaven

iiNet still wins

Appeal dismissed:

Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23

SMH report

However, Jagot J dissented and Emmett J warned:

Even though the Copyright Owners are not entitled to the relief claimed in this proceeding, it does not follow that that is an end of the matter.  It is clear that the questions raised in the proceeding are ongoing.  It does not necessarily follow that there would never be authorisation within the meaning of s 101 of the Copyright Act by a carriage service provider, where a user of the services provided by the carriage service provider engages in acts of infringement such as those about which complaint is made in this proceeding.  It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements.

Lid dip: Sarah Matheson

Convergence review

It’s never too late to discover a government inquiry (at least before the legislation comes through)!

Back in December, the Minister for Broadband, Communications and the Digital Economy announced a Convergence Review.

Media Release, draft Terms of Reference and “home page“.

Given its departmental provenance and some of the discussion in the Background Paper, it might be thought the Review is mainly targeted at the Telco Act, the Radiocommunications Act and the Communications/Media regulator.  There are some interesting straws in the wind for IP however:

First, the first draft term of reference:

In light of convergence, the Committee is to review the current policy framework for the production and delivery of media content and communications services. The Committee is to:
  1. develop advice for Government on the appropriate policy framework for a converged environment;
  2. advise on ways of achieving it, including implementation options and timeframes where appropriate; and
  3. advise on the potential impact of reform options on industry, consumers and the community.

(my emphasis).

In the Background Paper, there are also some interesting IP-related aspects:

So, at pp. 14-15:

Another trend affecting business models is the trend towards the ‘granular’ nature of media consumption; for example consumers can now download songs, not albums; watch specific TV shows on demand and not the linear programming of a channel, and read a single news article through an online search engine, rather than purchase and read the day’s newspaper edition. In the online world the consumer is in the driving seat of their own media and entertainment consumption patterns with more choice and control than ever before. In addition to the rise of competing online platforms and fragmentation of the consumer market, another challenge to established business models is that digital revenues are not yet matching analog ones. In 2008, NBC Universal CEO Jeff Zucker famously stated that media companies should not ‘trade analog dollars for digital pennies’24. By 2009, he quipped that this may have increased to ’digital dimes’25. While online revenues are growing and the gap is reportedly closing26, ensuring ongoing investment while balancing the difference between analog dollars and digital cents presents challenges to established media companies.

On p. 16 under the heading ‘Policy settings that encourage Australian, local, and children’s content’, the discussion about Australian content quotas imposed on tv and radio, ends:

The rise of these alternative audiovisual services and the growing fragmentation of the media market raises questions as to appropriate policy settings to ensure the ongoing production and distribution of Australian media content which reflects and contributes to the development of national and cultural identity.

(Their emphasis)

And, of course, the paranoid among you out there in cyberspace, will no doubt recall the rather cavalier treatment (e.g. here and here) meted out to iiNet before it won the (first round of) the Roadshow case.

Now, you could have fun (and spend lots longer than a year) on this: e.g. Prof Gans lambasts the authors (and, I guess, indirectly the other copyright owners who have similar ideas), but (for balance) also the App Store and, of course, until the Floods came, we were all twisted up with Gerry Harvey wondering if putting a GST on online purchases (overseas) will change the fact that you can often buy things online from overseas for prices 30-40% less than in stores here. Assuming of course you can “buy”: compare the tv shows or movies or books in the iTunes store or on Kindle or audible from Australia to what you can get with a US address, maybe. Somehow, I have avoided mentioning Google so far. Wonder how many examples the Review will come up with which lead to peeling back regulation?

Now, the time for commenting on the draft Terms of Reference closed on 28 January, so the scope of the review may become clearer. Then, there will be an independent committee to conduct the review, with their report scheduled for 1st quarter 2012.

One to watch!

Lid dip: Mary Wyburn

Copyright fest in Melbourne

IPRIA and CMCL at Melbourne Uni. are holding a half-day forum on 18 March on:

  • iiNet
  • Larrikin (Down Under)
  • Telstra v PDC

Speakers are:

 

David Brennan, Melbourne Law School
Melissa de Zwart, University of South Australia
David Lindsay, Monash University
Beth Webster, Intellectual Property Research Institute of Australia
Philip Williams, Frontier Economics
Details and registration here.

ISPs, authorisation and copyright DownUnder

In case you have been on Mars, or locked in a conference room writing submissions, you have probably heard that the Federal Court has rejected the music industry’s attempt to impose liability on iiNet, and ISP, for copyright infringement by authorising the infringing activities of users of its network.

Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 (636 para judgment) here.

Since I will find myself still locked in aforesaid conference room, I’ll simply quote (at this stage) from the 21 para summary:

 

The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs.
The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons.
Looks like there will also be interesting obvservations on the operation of the Telecommunications Act and the role of iiNet’s policy vis a vis repeat offenders.

Howard Knopf and Michael Geist look at the decision from Canadian perspectives.