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.