Thursday, 04 February 2010 12:35

Internet suspensions not supported by law, says judge in iiNet case

A Federal Court judge has ruled that suspension or termination of Internet accounts is not a reasonable measure to enforce copyrights.

Copyright holders seem like the idea of being able to notify the relevant ISP if they think they have detected someone using the Internet to make unauthorised copies of copyright material - especially when those materials are music or movies being copied through BitTorrent.

But in the summary of his judgement in Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24, Justice Dennis Cowdroy found "a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act."

Among other points, the judge noted in his full judgement that even if provision of Internet access was held to be the means of copyright infringement (which it wasn't), there was no significant evidence that a significant portion of the use of an account was associated with infringement.

Judicial consideration of the extent of infringing use of a particular account would be necessary before suspension or termination could be reasonable.

Furthermore, terminating or suspending an account would not only affect the infringing party - everyone that uses the same account (eg, to make VoIP calls) would also be affected.

What else did Cowdroy J say? Please read on.

Justice Cowdroy suggested Roadshow and its associates sued the wrong party:  "It is unfortunate that the outcome of the Court's finding is that the applicants will continue to have their copyright infringed. However, the fault lies with the applicants for choosing the wrong respondent. The current respondent does not stand in the way of the applicants pursuing those who have directly infringed their copyright nor in the way of the applicants pursuing any of the constituent parts of the BitTorrent system for authorisation."

That suggests we may see copyright holders change their existing strategy of not seeking legal redress against individuals making infringing copies via the Internet.

Furthermore, the judge rejected iiNet's defence that the Telco Act prevented it from complying with requests from AFACT that would identify allegedly infringing users.

So if you're cheering the outcome of Roadshow v iiNet because you think it will make it easier to continue to make infringing copies, think again.

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Stephen Withers

Stephen Withers is one of Australia¹s most experienced IT journalists, having begun his career in the days of 8-bit 'microcomputers'. He covers the gamut from gadgets to enterprise systems. In previous lives he has been an academic, a systems programmer, an IT support manager, and an online services manager. Stephen holds an honours degree in Management Sciences and a PhD in Industrial and Business Studies.

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