Posts Tagged ‘isp’

Attorney-General on copyright reform DownUnder

Friday, February 14th, 2014

Yesterday, the Commonwealth Attorney-General, who has portfolio responsibility for copyright in Australia, gave an important speech at the opening of the Australian Digital Alliance forum.

Some things that caught my eye:

The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic.

Can’t argue with that: s 195AZGF or s 135ZZZZA, anyone? So, we are going to embark on a process to reform copyright. Bearing in mind that the ALRC has just had its report tabled:

I remain to be persuaded that [adopting 'fair use'] is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.

and

First, when this process is finished, and it will be a through and exhaustive exercise in law reform, the Copyright Act, will be shorter, simpler and easier to use and understand.

Secondly, the Act will be technology neutral – no more amusing references to videotapes as we find in current section 110AA.

Thirdly, we will pay careful regard to the broader international legal and economic context ….

In carrying out this work:

The challenge for us today is how to balance the benefits for creators against a range of other public interests including the interests of users, educators and other important public goods.

….

Nonetheless, the fundamental purpose of copyright remains unchanged – to ensure that those who take on the risks of creation are appropriately rewarded for their abilities and efforts.

On the subject of online piracy:

the High Court’s decision of 2012 in the iiNet casechanged the position. The Government will be considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks.

Options the Attorney identified for fixing this include ‘graduated response’, third party injunctions against ISPs or maybe just facilitating self-regulation.

Read the Attorney General’s speech in full.

Lid dip: Peter Clarke

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Roadshow v iiNet

Friday, April 20th, 2012

The High Court has unanimously dismissed Roadshow’s appeal in the case against iiNet.

On a first look, there are some references suggesting that our law is being brought back in line with the UK (CBS v Amstrad) and Canada (CCH Canada v Law Society of Upper Canada). Consideration will have to await further review.

Although unanimous, there are 2 judgments: as in iceTV, French CJ, Crennan and Kiefel JJ in one and Gummow and Hayne JJ in the second.

Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16

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ISP gets DMCA win in USA

Thursday, December 22nd, 2011

The Ninth Circuit has affirmed the trial court’s summary dismissal of UMG copyright claims against Veoh on the basis of §512(c) – the ‘hosting’ safe harbour. UMG argued 3 reasons why §512(c) did not apply:

First, UMG argues that the alleged infringingactivities do not fall within the plain meaning of “infringe-ment of copyright by reason of the storage [of material] at thedirection of a user,” a threshold requirement under§ 512(c)(1). Second, UMG argues that genuine issues of factremain about whether Veoh had actual knowledge of infringe-ment, or was “aware of facts or circumstances from whichinfringing activity [wa]s apparent” under § 512(c)(1)(A).Finally, UMG argues that it presented sufficient evidence thatVeoh “receive[d] a financial benefit directly attributable to. . . infringing activity” that it had the right and ability to control under § 512(c)(1)(B). We disagree on each count, andaccordingly we affirm the district court.

Each of these requirements has a counterpart in our US Free Trade Agreement ‘inspired’ – see s 116AH items 1 and 4 and therefore should repay consideration.

On the knowledge / awareness point:

At [11], Judge Fisher noted that UMG had not notified Veoh of any infringing material under the DMCA before commencing proceedings. After noting at [12] that Congress placed the burden of policing infringements on copyright holders, Judge Fisher continued at [13]:

[13] UMG asks us to change course with regard to§ 512(c)(1)(A) by adopting a broad conception of the knowl-edge requirement. We see no principled basis for doing so.We therefore hold that merely hosting a category of copy-rightable content, such as music videos, with the generalknowledge that one’s services could be used to share infring-ing material, is insufficient to meet the actual knowledgerequirement under § 512(c)(1)(A)(i).
Then at [14], Judge Fisher rejected UMG’s arguments that Veoh should be held to have sufficient awareness of infringing activity:
…. For the same reasons, we hold that Veoh’s general knowledge that it hosted copyright-able material and that its services could be used for infringe-ment is insufficient to constitute a red flag.
In Section 2, Judge Fisher dismissed UMG’s other evidence of awareness. One point of interest was that an email from Michael Eisner CEO of Disney would have been sufficient if from a third party, but was rejected since it was from a copyright holder and did not follow the DMCA process.

The 1709 blog has a good summary and links here.

As Techdirt points out, however, the costs of the litigation drove Veoh out of business.

Next up, presumably, the Ninth Circuit’s decision in the appeal from Viacom v Youtube.

Although, as noted above, the decision has potential ramifications for the corresponding Australian provision, I am not convinced it has much to say on Roadshow v iiNet (which concerned Category A activity, not Category C anyway) where the AFACT Notices seemed to provide specific notice (once properly explained).

UMG Recording Inc v Shelter Capital Partners LLC., Case: 09-55902, 9th Cir. December 20, 2011

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ISPs and filtering

Tuesday, December 6th, 2011

While we wait with bated breath for the High Court’s deliberations on Roadshow v iiNet (transcript of hearing here, here and here), it is worth noting that the CJEU (formerly the ECJ) has struck down an injunction against an ISP which required the ISP to monitor all its users’ traffic and filter (block) copyright infringing material.

SABAM, the Belgian authors’ collecting society (counterpart to APRA) obtained an interlocutory injunction against Scarlet, an ISP. SABAM contended that some of Scarlet’s customers were using its services to engage in peer-to-peer file sharing of copyright materials without authorisation. It obtained from the Belgian courts an order that Scarlet implement a system of filtering to ensure that its users were blocked or otherwise made it impossible for them to send or receive in any way, files containing a musical work using peer-to-peer software without the permission of the copyright owners.

It was common ground between the parties that this would require Scarlet to introduce a system for filtering:

–        all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

–        which applies indiscriminately to all its customers;

–        as a preventive measure;

–        exclusively at its expense; and

–        for an unlimited period,

which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which infringes copyrigh

It was also common ground between the parties that such a system would require :

–        first, that the ISP (Scarlet) identify, within all of the electronic communications of all its customers, the files relating to peer-to-peer traffic;

–        secondly, that it identify, within that traffic, the files containing works in respect of which holders of intellectual-property rights claim to hold rights;

–        thirdly, that it determine which of those files are being shared unlawfully; and

–        fourthly, that it block file sharing that it considers to be unlawful.

That is, the ISP would have to monitor all the traffic across its network.

While the CJEU recognised that IP, in this case copyright, was a fundamental right. It also recognised that its protection needed to be balanced against the protection of other fundamental interests. It was necessary to strike a fair balance between the rights of copyright owners, ISPs and their customers. This injunction did not do that and so was incompatible with Community law (we would say “invalid”):

47      In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

48      Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

49      In those circumstances, it must be held that the injunction to install the contested filtering system is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as ISPs.

50      Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

Thus, the filtering injunction did not strike a fair balance between the protection of IP and the rights of ISPs and their customers.

Case C-70/10 Scarlet Extended SA v SABAM, 24 November 2011.

IPKat has the text of the CJEU’s Summary and as they point out, the CJEU’s ruling has some interesting implications for the filtering injunction ordered by Arnold J in Newzbin 2.

Of course, in Australia, we do not labour under a Charter of Rights. Section 116AH(2) of the Copyright Act 1968 does, however, place some limits on a “carriage service provider’s” obligations to monitor:

(2)  Nothing in the conditions is to be taken to require a carriage service provider to monitor its service or to seek facts to indicate infringing activity except to the extent required by a standard technical measure mentioned in condition 2 in table item 1 in the table in subsection (1),

which is a rather more anodyne protection. Also, under the Telecommunications Act, carriers and carriage service providers have prohibitions on disclosing information related to communications (which is not the same thing as a prohibition on monitoring), but there are important exceptions including disclosures authorised by or under law. Cf  e.g. ss 276 and 280.

 

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Copyright safe harbour scheme

Friday, October 14th, 2011

Links to the Consulatation Paper on the Copyright safe harbour scheme for carriage service providers.

Broadly, the safe harbour schemes provide some protection from some remedies for carriage service providers:

Category A – acting as a conduit for internet activities by providing facilities for transmitting, routing or providing connections for copyright material
Category B – caching through an automatic process
Category C – storing copyright material on their systems or networks, and
Category D – referring users to an online location (for example, linking).

The first problem is that the definition of csp isFrom

    in

the Telco Act (i.e.) those providing the, er, telephone service. Didn’t cover Google or Yahoo or a whole host of other Internet service providers. The Australian definition is much narrower than the US definition. So, the Government is exploring broadening this.

There may be a question of what the US Free Trade Agreement permits.

The second question is looking at ways to streamline the notice system.

Lid dip Libby Baulch

Submissions must be in by 22 November 2011.

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ACTA coming a little bit more out of the shadows

Thursday, November 12th, 2009

Michael Geist has a link to the leaked EU comments on the chapter for third party liability on the internet – being drafted by the USA.

The Guardian has weighed into the debate.

Kim Weatherall has emerged from her self-imposed seclusion to comment here, here and here.

DFAT’s must recent summary and overview of key elements. Anondyne USTR statement.

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Irish ISP and 3 strikes

Tuesday, February 24th, 2009

IPKat reports that the case in Eire in which the record companies sued the ISP, Eirecom, has settled after 8 days of the scheduled 4 weeks of trial.

Amongst other details, the ISP adopted a 3 strikes policy and the record companies deployed a service to monitor (entrap?) file”sharers”.

Read more here.

Some other background and 3 other strikes here, here, here and here.

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IPRIA, ISPs and (Copryight) authorisation

Thursday, January 29th, 2009

IPRIA is hosting a free seminar on ISPs liability for authorising copyright infringement.

Impressive range of panellists. Possibly the only hotter topic in copyright is what is a reproduction of a substantial part. Score a CPD point!

5 February 2009 at 5.30 for 6.00pm.

Details via here.

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Digital Economy – Future Directions consultation

Wednesday, January 21st, 2009

The convolutedly named The Department of Broadband, Communications and the Digital Economy has issued a consultation paper for industry on the Digital Economy Future Directions.

Apparently, the consultation draft arises from workshops held in August and September 2008.

There is considerable useful detail about the state and composition of the digital economy in Australia and questions on a range of important issues are posed.  In connection with the regulatory framework issues, the following questions are raised:

Should the existing copyright safe harbour scheme for carriage service providers be broadened?  

Does Australia’s copyright law unreasonably inhibit the operation of basic and important internet services? If so, what are the nature of such problems and practical consequences?  How should these be overcome? 

Is there non-copyright legislation that is directly relevant to digital economy businesses that create uncertainty or barriers? 

One might have thought, at a minimum, that the scope of the so-called copyright ‘safe harbors’ should be expanded from the indecipherable ‘carriage service providers’ at least to the extent of ‘service providers’ permitted under the Free Trade Agreement (see art. 17.11.29).  One might also speculate that it would be preferable to adopt a global framework for such service provider liability rather than adopting inconsistent and contradictory regimes for different subject matter such as copyright and defamation etc.

The paper specifically excludes from its scope questions about the National Broadband Network.

The consultation paper is available in pdf or Word format via here.

Better hurry, you have until 11 February 2009 to get your pearls in.

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The Internet Wars (copyright campaign) come to ISPs down under

Tuesday, November 25th, 2008

The big movie studios have brought proceedings against iiNet, one of the larger (in a non-Bigpond sort of way) ISPs seeking to impose liability on the ISP for infringing downloading by its subscribers.

The Application is here (pdf) and the Statement of Claim is here (pdf).

Various analyses:

Nic Suzor has a detailed view here

Kim Weatherall here

Australian PC Mag here

The Film Industry outlines its position here

IPRoo carries a quote from the Internet Industry Association’s CEO here.

As you can see from this coverage, this has really set the cat among the pigeons.  The striking thing about this action, however, is that one might have characterised iiNet as a general purpose ISP, not existing just to promote infringing downloads like the Court’s found Mr Cooper’s mp3s4free.com or substantially like Kazaa.

Thus, the distinction propounded by the record companies in Cooper (at [123]) and both questioned and side-stepped by Branson J (at [40]) appears to be very squarely off the table. So, as many of the bloggers note, it is not too much of a stretch to claim that the future of the internet is at stake here.  Will the old Copyright Convergence Group‘s analogy to the postal system – imposing liability only on the person who introduces (posts) the material – be confirmed or will we, through the Courts, turn back into a closed, monitored system?

The ISPs can hardly be surprised:

(a) s 101(1A(c) expressly provides for the development of an industry code to establish norms;

(b) the copyright owners have directly attacked the ISPs in Eire;

(c) the UK government has “brokered” some sort of more “pro-active” role on ISPs too.

No doubt, if the matter goes to trial, we can expect to see a volume of evidence about the volume of iiNet’s P2P traffic vis a vis its other activities and, before then, perhaps some applications for discovery of traffic details.

Given that liability appears to be predicated on authorisation, it will also be particularly interesting to see how the movie producers circumvent the prohibition on intercepting communications over a telecommunications system and, perhaps, (if an ISP is a carriage service provider) the prohibition on use or disclosure of information the contents of any communication carried by a carriage service provider.

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