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!

Google bookstore: closed platform or platform innovator?

Has openness become a mere buzzword?

I’m not arguing that “openness” is a bad thing in the tech business. What I’m saying is that it is not an unmitigated virtue, and it’s not necessarily the first thing people should care about when they’re shopping for a product. I’m glad that Google has introduced its new bookstore, because the e-book industry would obviously benefit from more competition. But I’d be even happier if Google wasn’t touting half-closed openness as its store’s main selling point. In the absence of real openness, Google ought to have something that Amazon doesn’t: more books, cheaper books, prettier books, books with more functions, more reviews of books, better recommendations, some kind of social-networking integration—something, anything, that would distinguish it from the bookselling herd. Calling something “open” isn’t enough, especially when it’s actually closed.

Survey finds free internet downloads primary music source for teenagers

A survey of 47 000 teenage internet users has found found that 33 per cent nominated ”downloading from the internet without paying” as their primary source of music. While this doesn’t necessarily imply piracy, it looks pretty grim for the content industries, and lends weight to previous surveys suggesting that a majority of adults had engaged in file-sharing at some point. According to iiNet, 50 per cent of ISP traffic is now BitTorrent, and 97 per cent of BitTorrent trackers deal in copyright works.

In a survey of more than 47,000 of its members worldwide, the site, which caters to 13 to 18-year-olds, found 28 per cent of the 574 Australians who responded nominated ”downloading from the internet without paying” as their primary source of music. That compared with 37 per cent who purchase music online and 20 per cent who buy CDs.

Australian teenagers are even more law-abiding when it comes to movies, with just 26 per cent admitting they ”at least sometimes” download or stream movies, compared with a global average of 46 per cent.

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.

New York author offers struggling writers questionable work-for-hire terms

Pseudonymity, liability, no copyright, and a $250 advance. Sounds like a pretty crappy publishing deal:

It’s an agreement that says, ‘You’re going to write for me. I’m going to own it. I may or may not give you credit. If there is more than one book in the series, you are on the hook to write those too, for the exact same terms, but I don’t have to use you. In exchange for this, I’m going to pay you 40 percent of some amount you can’t verify—there’s no audit provision—and after the deduction of a whole bunch of expenses.” He described it as a Hollywood-style work-for-hire contract grafted onto the publishing industry—“although Hollywood writers in a work-for-hire contract are usually paid more than $250.”

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.

A summary of the ACS:Law data leak

On 24 September 2010, an archive of emails from London-based law firm ACS:Law was leaked onto the internet. The archive was unencrypted, and had been obtained as part of an ongoing campaign by internet activists to expose the firm’s copyright enforcement practices. The emails contained a great deal of personal information — which I won’t repeat here — but suffice it to say, this information was of a highly personal nature (IP addresses, filenames, names, postal addresses). ISPs were quick to respond:

“Our first concern is with our customers but we have been obliged to respond to court orders requiring that we disclose customer data. However, there is increasing evidence that there are deep concerns regarding the integrity of the process being used by rights holders to obtain customer data from ISPs for pursuing alleged copyright infringements.

We need to have further confidence that the initial information gathered by rights holders is robust and that our customers will not be treated unfairly. We are urgently exploring how this can be assured, including through the assistance of the courts.”  Read more »

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.

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