"We're not copyright police": iiNet

The iiNet trial continues. During argument yesterday, Cobden SC for iiNet argued that to require internet service providers (ISPs) to forward notices of copyright infringement to their subscribers would impose an unreasonable duty on ISPs to ‘police’ their customers. The issue arises in the context of interpreting the requirements for authorisation liability under ss 36(1A) and 101(1A) of the Copyright Act 1968 (Cth), under which a relevant factor is whether the defendant took ‘reasonable steps’ to prevent the infringement.

AFACT argues that in refusing to take any action in response to notices it received from copyright owners, iiNet cannot be said to have taken reasonable steps, and should be liable as authoriser. iiNet argues that it didn’t — and, indeed, couldn’t — take any steps because to act on the basis of information obtained during data transmission would place it in breach of the Telecommunications Act 1997 (Cth) (which prohibits secondary uses of carriage data), and would in any case be an ‘inappropriate and certainly unreasonable step’ that amounts to copyright enforcement being ‘outsourced to the ISPs’.

The studios were asking for a change to iiNet’s entire business model that would require complex systems and processes for handling thousands of infringement notices issued by music and movie owners around the world, he argued.

He also reiterated iiNet’s claim that parts of the Telecommunications Act bridged to privacy laws that prevented the company from “using” information on its systems to enforce the notices.

Leaving aside positivist arguments about the limits of iiNet’s legal authority to act, there does seem some force in the argument that it would be unreasonable for an ISP to act on mere allegations of infringement — otherwise, given the volume of complaints and the liability risk created by non-compliance, a rational party would effectively be required to uphold all copyright complaints, entailing a significant enforcement cost, as well as the risk (and social cost) of being wrong.