Intellectual Property

High Court of Australia grants leave to appeal iiNet ruling

Today the High Court of Australia granted leave to appeal against the decision of the Full Court of the Federal Court of Australia in Roadshow Films Pty Ltd v iiNet Ltd. I haven’t been able to uncover a copy of the transcript or a list of the grounds of appeal, but the appellants are likely to contest the Full Court’s approach to determining authorisation liability, its construction of the copyright safe harbour provisions, and its finding that iiNet was not provided with reasonable notice of infringement.

iiNet CEO Michael Malone said he wasn’t surprised by today’s decision, but called on the industry to come to a “workable” solution to piracy problems. “I know the Internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone said. “We remain committed to developing an industry solution that sees more content readily and cheaply available online as well as a sensible model for dealing with repeated copyright infringement activity.”

The respondent, iiNet, now has two weeks in which to file a notice of cross-appeal; it will presumably wish to contest Emmett J’s creative reading of the disconnection policy requirement, and his Honour’s ‘checklist’ of steps to put iiNet on notice (at [209]-[211]). There is also a costs issue to be determined. Watch this space!

The blocking barb in today's Pirate Bay appeal

As has been widely reported, the three co-founders of file-sharing website The Pirate Bay have lost their appeal before the Stockholm Court of Appeal against criminal convictions imposed in April 2009.

The Court upheld the trio’s convictions for contributory copyright infringement and increased the collective financial sanctions from $2m to 46 million kroner (USD$6.5m), largely on the basis of the recording industry’s evidence, which was accepted to a greater extent than by the trial judge.

The Court reasoned that ‘The Pirate Bay has facilitated illegal file-sharing in a way that results in criminal liability for those who run the service. For the three defendants the court of appeal believes it is proven that they participated in these activities in different ways and to varying degrees’. Curiously, they were liable to pay the fine in equal amounts.

The really interesting barb in yesterday’s decision is the reaction by the British Phonographic Industry spokesperson, who demanded that English ISPs ‘act responsibly and stop providing unfettered access to this criminal website’. The idea that ISPs could ever come under a duty to block access to a third party website that enables contributory infringement is, of course, absurd, but if these comments are anything to go by, it’s something that ISPs will face increasing pressure to do.

French 3 strikes regime sees ISPs inundated with notices

It’s unclear whether the recent Creation and Internet Act 2010 (FR) is having much of an impact on digital piracy. However, according to copyright owners, around 25,000 notices of alleged infringement are being sent to the state-administered digital enforcement body (HADOPI) each day:

French labels trade body director general David El Sayegh revealed the 25,000 figure. He added that labels were not aware of the subsequent number of warning messages sent by HADOPI to suspected copyright infringers.

The impact of HADOPI on digital sales in France remains to be seen. “It is too early,” says El Sayegh, who is looking towards the end of 2010 for the first indications of how it has worked, and the end of the second half of 2011 for a more conclusive sales impact.

US-Style Fair Use Coming to England?

David Cameron included this cryptic announcement in a speech about establishing a high-tech sector in East London:

The second new announcement I can make today is to do with intellectual property. The founders of Google have said they could never have started their company in Britain. The service they provide depends on taking a snapshot of all the content on the internet at any one time and they feel our copyright system is not as friendly to this sort of innovation as it is in the United States.

Over there, they have what are called “fair-use” provisions, which some people believe gives companies more breathing space to create new products and services. So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. I want to encourage the sort of creative innovation that exists in America.

It’s interesting to see the connection being made between exceptions to infringement and ‘breathing space’ for innovation. Whether this review will amount to anything remains to be seen.

UK ISPs to pay 25% of copyright enforcement costs

An agreement reached between UK ISPs and rights-holders will see ISPs footing 25 per cent of the bill for implementing the new graduated response regime required under the Digital Economy Act 2010 (UK), the UK Government announced today. Rights-holders, represented by music and film industry associations, will pay the remaining costs. The ISPs are (understandably) less than pleased:

“It is absolutely outrageous that ISPs will be forced to pay for the costs of the music and film industries to enforce their own copyright”, said Andrew Heaney, Director of strategy, TalkTalk

We continue to believe that ISPs should bear a greater proportion of the costs of communicating with their customers about illegal P2P use on their networks,” said Adam Liversage, director of communication at the BPI.

These costs can be grouped into four main categories: subscriber identification (manually matching IP addresses to subscribers, sending out notices to subscribers and logging the allegation); list compilation (compiling and forwarding subscriber lists to rights-holders, when requested); implementation costs (one-off costs to develop the required software and train staff); and subscriber appeal costs (appeals against allegations will, for now, remain free to subscribers).

Let’s see how long it takes an ISP (or wrongfully-accused subscriber) to mount a legal challenge to the Act’s validity or implementation.

Kookaburra sits in the old gum treeee, merrily infringing

With all the fuss over the iiNet decision today, it might be easy to overlook another interesting copyright judgment that was handed down just a few metres away.

In Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29, the owner of copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’ successfully sued the Australian band Men at Work for infringing copyright in the musical work by reproducing the flute riff in its hit single, ‘Down Under’, which has become a kind of unofficial anthem for many Australians. Kind of ironic that the national spirit infringes copyright.

Update:The judgment has been released — more analysis coming soon.

iiNet wins: Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 24

Justice Cowdroy of the Federal Court of Australia has just handed down judgment in Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 24 (iiNet Case), finding in favour of the respondent. As you’re probably aware, the iiNet Case centres on allegations of copyright infringement in connection with unauthorised downloads of films by iiNet’s subscribers using the BitTorrent protocol. The decision confirms the safe-harbours enjoyed by internet intermediaries that prevent them from having to police internet content and limits their responsibility for users’ conduct. Some huge ramifications for Australian service providers were avoided today. From his Honour’s summary reasons:

“iiNet is not responsible if an iiNet user uses [the BitTorrent] system to bring about copyright infringement … the law recognises no positive obligation on any person to protect the copyright of another”

I’ll post a more detailed analysis of the judgment once I’ve had time to digest it fully. For now, the essential points from his Honour’s reading of the summary (as liveblogged and twittered from Courtroom 18C) seem to be as follows:  Read more »

Secret talks for the Anti-Counterfeiting Trade Agreement continue

Some interesting comments from Michael Geist concerning the now-infamous Anti-Counterfeiting Trade Agreement (ACTA), which is being negotiated in secret by representatives of most developed countries. This piece considers the extent to which states party to ACTA would be required to amend their domestic laws:

most [representatives] have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country. With that in mind, we get:

  • the European Union stating “ACTA will not go further than the current EU regime for enforcement of IPRs”
  • the USTR maintaining that ACTA will not rewrite US law
  • Australia’s DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA
  • New Zealand stating “ACTA will not change existing standards”
  • Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules

Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all. The truth is that ACTA will require changes in many countries that ratify the agreement. The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels. Meanwhile, US lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.  Read more »

IIA to educate ISPs on copyright liability after iiNet case

The Australian Internet Industry Association (IIA) has invited internet service providers to attend a briefing on their copyright liability following the conclusion of oral argument in the Village Roadshow v iiNet case — judgment in which is expected early next year.

The briefing is designed to answer an interim question raised by the iiNet litigation: what should ISPs do between now and the final finding on liability? Doing nothing risks copycat legal action in the event that the rights-holders succeed. Changing infringement policies now looks bad and risks being bound by a higher standard than would be required in the event that iINet prevails. Further, the costs of doing something — monitoring customers, enforcing a repeat infringer policy, responding to take-down notices, and so on — should not be underestimated. Hopefully the IIA can offer some practical guidance to ISPs — particularly the smaller operators, who are undoubtedly troubled by the costly action iiNet has been forced to defend.

Individual to be prosecuted for domain name 'theft'

A number of news agencies are reporting that Daniel Goncalves, a 25 year-old law firm technician, is being prosecuted for the ‘theft’ of domain name P2P.com:


Attorney Paul Keating told DNN that most cases of domain theft recovery that he has dealt with have been complicated at best. The real problem stems from the fact that domain names aren’t considered property. “The laws do not specifically identify domains as property. That has been the subject of various court decisions. Not all courts have issued consistent decisions. For example, bankruptcy courts have no difficulty treating domains as property. The IRS treats domains as a form of intellectual property and allows amortization along the lines of a trademark though over a shorter period,” Keating said. Further complications come in to play when we look at the rulings in different states. “California is believed to treat them as property after the Sex.com case but that was a federal decision interpreting California law. The Eastern District of Virginia (where the Verisign registry is headquartered) clearly holds domains to be the subject of a license and thus not property. I have been involved in various state-level cases seeking recovery of stolen names or trying to specifically enforce a domain purchase agreement in California and the courts have always honored the claim.”  Read more »

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