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.

iiNet and the movie studios

Some points worth pondering arising from the recent pleadings fight

Both the movie studios and iiNet brought motions for summary judgment and/or to strike parts of the other side’s pleadings relating to the claims that (1) iiNet authorised infringement, (2) iiNet was liable as a primary infringer for actually reproducing the allegedly copied films and (3) whether or not iiNet was also liable in conversion.

The movie companies are obviously suing iiNet for authorising the (alleged) infringing activities of iiNet’s subscribers on a theory similar to the successful theories in Cooper v Universal.

Part of iiNet’s defence is that the notice it received of the claimed infringements were ‘mere allegations of copyright infringement’. The judge considered this sufficient to make iiNet’s point:

56.   The Court has no difficulty in understanding such pleading as being a statement that the AFACT notifications did no more than bring to iiNet’s attention an allegation of copyright infringement. Whether the notifications from DtecNet of alleged infringement are sufficient to prove infringement by iiNet’s users or might be used as evidence that iiNet was aware of the infringement of its users is necessarily a matter requiring evidence and thus is a matter for determination at the hearing. So considered, there is nothing further which needs to be added to the pleading. The Court rejects Roadshow’s assertion that such statement is inadequate.

 That is, iiNet appears to be defending the allegation of authorising copyright infringement in part by contending it did not have sufficient knowledge of what was going on to have the necessary control. As the quote shows, however, whether or not iiNet’s position will be good enough to win the day remains to be seen.

The other fights which are of potentially more general interest relate to the movie companies’ allegations that iiNet is itself a direct or primary infringer (not just an authoriser) or liable in conversion under s 116.

In relation to conversion, the judge considered it wasn’t clear whether the movie companies were alleging that the ‘infringing copies’ alleged to be converted were the data electronically transmitted across iiNet’s network (facilities) as temporary or transient copies stored in iiNet’s switches and servers or in some other way.

43.   It does not follow from the fact that the Court may find that the iiNet users have ‘electronically transmitted’ the films that the Court will necessarily have to find that the data so transmitted constitutes an ‘infringing copy.’ For example, the Court could find as a fact that the users have ‘electronically transmitted’ the whole or substantial part of the films by reference only to the conduct of the users without the Court having to consider the involvement of the technical process by which that transmission occurs. In such instance, the Court’s finding in relation to the conduct of the iiNet users may have no bearing on whether it finds that the data transmitted is, while in transmission, a copy of the film as defined, meaning an article or thing in which the visual images or sounds comprising the film are embodied. The data would need to be a copy for it to constitute an infringing copy, and there would have to be an infringing copy for there to be conversion.

The judge described the movie companies’ claims as novel but, at this stage of the proceedings, refused summary judgment and required them

47.   … to specify exactly what the ‘infringing copies’ are; how they are created; and at least one instance of them, as is required by O 58 r 16 of the Rules

Thirdly, it does appear that the movie companies contend that iiNet directly infringes because any temporary/transient copies of infringing material stored in its network or on its servers as users download or transmit them are infringing reproductions. Unlike the conversion claim, the judge considered this adequately pleaded:

50.   The issues the Court has raised regarding the definition of ‘infringing copy’, and whether that could apply on the facts pleaded, do not arise in relation to this claim. If it is found that there was transient storage of the whole or substantial part of the films, this may give rise to there being a ‘copy’ for the purposes of s 86(c) of the Copyright Act, and consequently the problems discussed above in relation to ‘electronic transmission’ do not apply.

Roadshow Films Pty Ltd v iiNet Limited [2009] FCA 332

Earlier background on the case here and here.