AT FIRST glance, Friday's decision by the High Court to reject a copyright infringement case against an internet service provider (ISP), iiNet, appears a concussive blow to the film industry titans that brought the action.
The court unanimously dismissed an appeal by companies including Village Roadshow, Universal Pictures, Sony Pictures Entertainment and Warner Bros against a recent Federal Court ruling that the ISP was not liable for the downloading habits of its customers. The High Court found iiNet "had no direct technical power" to prevent its customers from illegally downloading movies and other content using file-sharing software.
The High Court's words are unambiguous. But it is also clear that the status quo fails adequately to balance the rights of content creators to protect their intellectual property, the responsibilities of ISPs to help facilitate such protection and the privacy rights of individual clients of ISPs. Some legal experts believe ISPs will end up having to take more responsibility, and, indeed, iiNet's chief executive said after the High Court's ruling that he wants to work with the film companies to get content legally to internet customers, an apparent concession his company has some duty to content creators.
That will mean coming up with a way of sharing the cost of policing usage to prevent large-scale piracy, while protecting privacy and not unduly shackling the creative crucible that is the internet. Lawyers argue that there is precedent for ISPs to be found liable in the case of customers who repeatedly illegally download large files.
The Age has cautioned in the past against a heavy-handed legislative approach that risks inadvertently curtailing freedom of communication and expression, particularly in effectively shutting sites down by removing them from the internet's address book, the Domain Names System. We reiterate that concern in light of suggestions by Communications Minister Stephen Conroy that, depending on the High Court's decision, he would consider legislation to crack down on illegal downloading.
The Minister ought to be mindful of US experience. Earlier this year, two pieces of legislation aimed at protecting copyright were rejected amid public outcry. US President Barack Obama indicated he would have vetoed that legislation, but he also made it clear he wanted enhanced legislative protection of copyright. A new bill, the Cyber Intelligence Sharing and Protection Act, is set for debate. Senator Conroy should study that debate before determining his next move.
Frequently Asked Questions about this Article…
What did the High Court decide in the iiNet copyright infringement case?
The High Court unanimously dismissed an appeal by major film companies, affirming a Federal Court ruling that iiNet was not legally liable for its customers' illegal downloading because the ISP "had no direct technical power" to prevent file‑sharing activity.
Which film companies brought the copyright action against iiNet?
The appeal was brought by major film industry players including Village Roadshow, Universal Pictures, Sony Pictures Entertainment and Warner Bros, according to the article.
Why did the court say iiNet wasn't responsible for its customers' downloading habits?
The High Court found iiNet lacked the direct technical ability to stop individual customers using file‑sharing software to download movies and other content, so it could not be held directly liable for that activity.
What are the implications of the decision for ISPs and investors in the sector?
The ruling reduces immediate legal liability for ISPs like iiNet, but legal experts say ISPs may still face pressure to take more responsibility. For investors, that means regulatory and commercial responses — such as voluntary cooperation with content owners — could affect ISP costs and business models going forward.
Will ISPs be expected to help stop illegal downloading or share policing costs?
The article notes iiNet’s CEO expressed willingness to work with film companies to make legal content more available, implying ISPs may need to help find ways to share the cost of policing large‑scale piracy while balancing privacy and internet openness.
Could the government introduce new laws to crack down on illegal downloading?
Yes — the Communications Minister, Stephen Conroy, indicated he might consider legislation depending on the High Court’s decision. The article also cautions that heavy‑handed laws risk curtailing freedom of communication and could involve measures like removing sites from the Domain Name System.
What privacy and free‑speech concerns does tougher anti‑piracy legislation raise?
The Age warns that aggressive legislative approaches could inadvertently restrict freedom of communication and expression — for example, by effectively shutting sites down through DNS removal — and that privacy rights of ISP customers must be protected when policing usage.
How does the US experience with copyright bills relate to Australia’s debate?
The article points out that in the US two proposed copyright‑protection bills were rejected after public outcry, and that while President Obama signalled support for stronger protections, tougher measures faced pushback. It suggests Australian policymakers should study that debate, including upcoming bills like the Cyber Intelligence Sharing and Protection Act, before acting.
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