International Law

Weatherall on the iiNet copyright lawsuit

In between papers yesterday at the Media, Communications and Public Speech Conference I posted a link to a news report about the iiNet copyright lawsuit (see here).  Although I haven't had time to look into or think about the case any further, Kim Weatherall has obtained a copy of the statement of claim and posted her initial thoughts:

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ?repeat infringers??
2. How much responsibility will Australian courts put on intermediaries for ?doing something? about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ?profiting from copyright wrongdoing? - Kazaa with its P2P network, or Cooper with his ?mp3sforfree? website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ?ordinary? service providers?
3. When the legislation requires that ISPs, in order to ?gain absolution? or immunity from damages, should ?adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers? - what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ?notice and terminate? system that copyright owners have been pressing for? Will the government?s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement??

Read the rest of her initial first impressions here.

Full post as published by Freedom to Differ on November 21, 2008 (boomark / email).