Thou Shalt Stop Copyright Infringers

February 12, 2010

Yes, I know there {i}were{/i} only 10 commandments, but recent governments have infected even heavenly attitudes – now there are 722. The precise interpretation from the ancient Hebrew of the ones dealing with file-sharing and ISPs’ responsibility for preventing it has split legal scholars.

In Australia, in {i}Roadshow Films v iiNet{/i} [2010] FCA 24, an ISP was held not liable for the copyright infringement of its customers. Judge Cowdroy seemed to think that the world was awaiting his ruling but I was less excited than I am told I should be. In fact we in the UK might be more interested in a reference from the Belgian Court of Appeal. According to the redoubtable IPKat blog, the Court hearing {i}Sabam v tiscali{/i} has referred the following questions to the ECJ:
‘1. Do Directives 2001/29 [copyright in the information society] and 2004/48 [the IP enforcement directive], read in conjunction with Directives 95/46 [on the processing of personal data], 2000/31 [the e-commerce directive] and 2002/58 [on privacy and electronic communications] and interpreted with regard to Articles 8 and 10 of the European Convention on Human Rights, allow Member States to authorize a national court, seized in a procedure on the merits and solely on the basis of the legal provision which holds that “They [the national court] can equally impose a prohibitory injunction on intermediaries whose services are relied upon by a third party to infringe copyright or a neighbouring right”, to order an ISP to put into place, vis-a-vis all of its customers, in abstracto and as a preventive measure, at the expense of the ISP and without limitation in time, a system filtering all electronic communications, both incoming and outcoming, passing through its service, in particular by means of peer to peer software, with the aim to identify the circulation on its network of electronic files containing a musical, cinematographic or audiovisual work to which the claimant alleges to enjoy rights and to then block the transfer thereof, either at the request or at the time it is sent?

2. If question 1 is answered in the positive, do these directives require that the national court, seized to rule over a request for injunctive relief against an intermediary on whose services a third party relies to infringe a copyright, applies the principle of proportionality when it is asked to rule over the efficacy and the dissuasive effect of the requested measure?”

No, I cannot quite follow it either – I suspect that something has been lost in translation – but I am sure you get the general idea: Can a court order an ISP to filter out copyright infringers?

Both the Australian and the Belgian court face the same basic issue. Since ISPs know that there are bad people out there doing bad things through their pipes, shouldn’t they do something about it.?

The reason that I was unmoved by the Australian court’s judgment, even though it made the BBC’s lead web site page at one point and some people I greatly respect think it is really important, was that I thought that it was a statement of the pretty obvious – and at over 600 paragraphs, it was a very long statement of the obvious. It was well put together but the summary, set out below to save you a trip to BAILII, probably tells you most of what you need to know.

If the ECJ says that a court can order ISPs to filter then we will enter a whole new world. Because, if you can make such an order, you can stop the infringements – for a time at least. And there is little doubt in my mind that courts on the Continent will make such orders.

It is true that the Australian judicial attitude probably mirrors the UK’s likely judicial attitude. But, despite what has been said about the Aussie case, we do not have copyright laws which closely match those in Australia – at least not as closely as some suggest. We are inevitably influenced by the various relevant EU Directives and we will eventually have a common EU position on this. My geography is weak but I am pretty sure that Australia is safe from that.

ISPs may draw some comfort from the outcome in the Federal Court of Australia, but they may be better advised to leave the celebratory drink until we hear from the ECJ.

{i}Roadshow v iiNet Summary{/i}

The judgment in this proceeding is necessarily complicated both as to fact and law. It is also lengthy, running for 636 paragraphs and almost 200 pages. I have decided to provide short oral reasons for the judgment which I am presently to hand down. These reasons are not intended to be a substitute for reading the judgment itself which will be accessible online this morning.
This proceeding raises the question whether an internet service provider or ISP authorises the infringement of copyright of its users or subscribers when they download cinematograph films in a manner which infringes copyright. In Australian copyright law, a person who authorises the infringement of copyright is treated as if they themselves infringed copyright directly.
This proceeding has attracted widespread interest both here in Australia and abroad, and both within the legal community and the general public. So much so that I understand this is the first Australian trial to be twittered or tweeted. I granted approval for this to occur in view of the public interest in the proceeding, and it seems rather fitting for a copyright trial involving the internet.
That this trial should have attracted such attention is unsurprising, given the subject matter. As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgment.
The 34 applicants who have instituted this claim represent the major motion picture studios both in Australia and the United States. They have brought this proceeding against iiNet which is the third largest ISP in Australia. An organisation known as the Australian Federation Against Copyright Theft or AFACT has, on behalf of the applicants, been prominent in the conduct of the claim.
AFACT employed a company known as DtecNet to investigate copyright infringement occurring by means of a peer to peer system known as the BitTorrent protocol by subscribers and users of iiNet’s services. The information generated from these investigations was then sent to iiNet by AFACT, with a demand that iiNet take action to stop the infringements occurring. The measures which AFACT requested iiNet perform were never precisely elucidated. However, as the evidence at trial indicated, AFACT wanted iiNet to send a warning to the subscriber who was allegedly infringing. If a warning was not sufficient to stop the infringement, AFACT intended that iiNet suspend the internet service of that subscriber. If the subscriber remained unco-operative, termination of the internet service was sought as the ultimate sanction. In addition, or in the alternative, the applicants suggested that iiNet should block certain websites.
The evidence of infringement gathered by AFACT utilised the BitTorrent protocol, a blueprint for a highly efficient and effective mechanism to distribute large quantities of data. This protocol was created in 2001. It has been used, or more accurately, the constituent parts of the protocol (such as the client, tracker and .torrent files) have been used by those accessing the internet through iiNet’s facilities (the ‘iiNet users’) to download the applicants’ films and television shows in a manner which infringes copyright. I shall refer to the constituent parts of the BitTorrent protocol together as the BitTorrent system.
The critical issue in this proceeding was whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users.
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 which I now refer to.
Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.
Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy, and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.
Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.
Consequently, I find that the applicants’ Amended Application before me must fail. However, for the sake of completeness, I have considered all the issues argued before me.
I find that the Telecommunications Act would not have operated to prohibit iiNet from acting on the AFACT Notices of infringement. However, as I have already found that iiNet did not authorise copyright infringement, such issue is irrelevant.
I find that s 112E of the Copyright Act would not have operated to prevent a finding of authorisation of copyright infringement against iiNet. However, as I found on conventional principles of authorisation that the respondent did not authorise copyright infringement, such issue is irrelevant.
Finally, I find that iiNet did have a repeat infringer policy which was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so. I have drawn assistance from United States authority dealing with similar statutory instruments in making the finding. While iiNet did not have a policy of the kind that the applicants believed was required, it does not follow that iiNet did not have a policy which complied with the safe harbour provisions. However, as I have not found that iiNet authorised copyright infringement, there is no need for iiNet to take advantage of the protection provided by such provisions.
The result of this proceeding will disappoint the applicants. The evidence establishes that copyright infringement of the applicants’ films is occurring on a large scale, and I infer that such infringements are occurring worldwide. However, such fact does not necessitate or compel, and can never necessitate or compel, a finding of authorisation, merely because it is felt that ‘something must be done’ to stop the infringements. An ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright. It is only by means of the application of the BitTorrent system that copyright infringements are enabled, although it must be recognised that the BitTorrent system can be used for legitimate purposes as well. iiNet is not responsible if an iiNet user chooses to make use of that system to bring about copyright infringement.
The law recognises no positive obligation on any person to protect the copyright of another. The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts. In the circumstances outlined above and discussed in greater detail in my judgment, it is impossible to conclude that iiNet has authorised copyright infringement.
In summary, in this proceeding, the key question is: Did iiNet authorise copyright infringement? The Court answers such question in the negative for three reasons: first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.