The CopyKat - reform is in the air ......

But will there be reform in Australia?

The Australian Finacial Review reports that Google and Facebook are fighting back against what they see as tough anti-piracy measures being ­considered by the Australian government which have resulted form the proposed reform review driven by Attorney-General George Brandis. These include a graduated response scheme, potentially making internet service providers liable for the piracy of their customers, and blocking overseas websites that host illegal content, such as The Pirate Bay. The submission by the Computer & Communications Industry Association (CCIA), which represents Google, Facebook, eBay and others says that rather than push for “graduated response schemes”, which would give illegal downloaders a series of warnings before punishing them, the government should consider the lack of legal content in Australia saying “There is little or no evidence that such schemes are successful, but there is no shortage of examples where such schemes have been distinctly unsuccessful” adding “Online copyright infringement is a global issue and any regulatory or legislative moves in one country tend to generate interest among stakeholders far beyond national shore.  And interestingly, even the government seems to sense no one is happy. Pay television provider Foxtel said in its submission that the proposal is "broader than it needs to be" although Foxtel CEO Richard Freudenstein said it would become uneconomic to make expensive, high-quality programs unless illicit downloading is tackled ("There will be a lot more cats on skateboards; we'll have a lot less Game of Thrones," he said);  Music Rights Australia warns it "will not be effective" and risks creating greater legal uncertainty for all parties. "Unanimous" opposition to the Australian government's proposed copyright law changes will force it "back to the drawing board" to tackle online piracy, Communications Minister Malcolm Turnbull has now said at a public forum in Sydney where Telstra executive director Jane van Beelen told the forum that there do not need to be any changes to copyright law. Rather, ISPs and rights holders should work together on a voluntary scheme to discourage internet users from infringing copyright. Turnbull concluded
"What is being canvassed in the discussion paper around authorisation liability - that is essentially the law that makes a person liable for the copyright infringement of another - those changes, I'd say there's been unanimity in that everyone has criticised them and found them inadequate from one level or another," 

The CCIA also said any move to hinder Australian ISPs and tech companies would put them “at a significant comparative disadvantage versus the European Union and the United States” as well as criticising  "cumbersome and restrictive territorial copyright restrictions" and bad "licensing conduct" in the music business. The CCIA also questions the content industries' stats about piracy, and the effectiveness particularly of three-strikes, where internet service providers are forced to send stern letters to file-sharing customers, including the threat of some sanction if infringement continues.

And on the same topic, Australian service provider iiNet has responded on a number of issues including privacy concerns, data retention plans and the effectiveness of the graduated response, as well as the contentious idea of blocking repeat offenders. iiNet’s chief regulatory officer Steve Dalby condensed the key points into a post on the ISP’s official blog, stating that the issue of copyright infringement can’t be dealt with by “applying a band aid” — it will require a “long term solution” that reduces piracy not by punishing infringers, but given people less reasons to download content illegally. He also saysthat most Australian consumers would be happy to pay for content, if someone actually offered it locally. He cites Foxtel’s own report of the success it’s had with season four of Game of Thrones, with the pay TV provider recording some 500,000 purchases and the “lengths” people go to in order to subvert geo-blocking for services such as Netflix. Dalby also hits out at rights holders’ use of “‘lobbynomics’ rhetoric” such as misleading information on the ecomonic imapct of piracy and the impact on employment - and the effect these claims have on policy and the media. The ISP also slammed the federal government for referring to online infringements as "theft", saying that it is a "moral rhetoric".

Michael Geist

TechDirt reveals that the leak of the complete CETA text  (the trade agreement between Canada and the EU) shows that Canada "fought off EU demands for more extreme copyright rules" and the leak has allowed Michael Geist to perform an analysis of how the copyright provisions in CETA have evolved since the first leak of the chapter covering intellectual monopolies, posted by Wikileaks back in 2009. At that time, the European Union was pushing for some "serious beefing-up of Canadian law" in this area: The leak seemingly reveals: "The starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright" but with Geist concluding "The major European copyright demands were ultimately dropped and remaining issues were crafted in a manner consistent with Canadian law."

4CHan, the online image-based bulletin board where anyone can post comments and share images, has pledged to implement a Digital Millennium Copyright Act policy to allow content owners to get material that has been illegally shared removed.. The move comes after the site was the first to host recently leaked private photos from a number of celebrity's mobile phones on its discussion boards. And Reddit, which had mass postings of the celebrity nude shots, admits that copyright might well be the best defence against 'revenge porn' saying "We take down things we’re legally required to take down, and do our best to keep the site getting from spammed or manipulated, and beyond that we try to keep our hands off” with Jason Harvey, a Reddit systems administrator, explaining "But when it came to the nude photos, “it became obvious that we were either going to have to watch these subreddits constantly, or shut them down. We chose the latter.” : Despite the obvious privacy violations, the apparent harassment, and — in many cases, including this one — the overwhelming evidence of computer crimes - "the quickest, easiest way to get compromising images off the Internet is frequently copyright law". More on the Washington Post. 

I know little about this next matter apart from this brief post - any updates from our readers on this story would be much appreciated here on the 1709 Blog but it looks very inetresting. It appears that Netherlands has reached a settlement with the copyright organisation Norma after the suspension of the private-copy tax in 2007. Norma will receive EUR 10 million in damages for it's members. Norma won a ruling in the Dutch Courts earlier this year. The copy levy was collected on media players and storage devices to compensate copyright holders.  What more can you tell us?

Music publisher BMG has announced that it had entered into a direct deal with American streaming service Pandora covering its catalogue of songs that are otherwise repped by US collecting societies ASCAP and BMI. It means that those songs will now be licensed to Pandora directly by the music rights company, rather than via the collective licensing system. BMG told reporters that the new deal, "creates marketing and business benefits for Pandora, BMG and the songwriters it represents".

And with our poll now closed - more on that Black Macaque monkey selfie here .

The CopyKat - tantalising titbits of global copyright news

Holmes and Watson

A federal judge has refused to stay a Seventh Circuit decision affirming that most of the Sherlock Holmes stories have lapsed into the public domain as the estate of Arthur Conan Doyle appeals to the U.S. Supreme Court. An attorney for the Estate told Law360 the denial on Wednesday by U.S. Circuit Judge Richard A. Posner was “no surprise,” adding that “the real question” is whether the Supreme Court will grant the Estate’s motion. Last month the Seventh Circuit upheld a lower-court decision that the elements included in the 50 Sherlock Holmes stories published before Jan. 1, 1923, are in the public domain in the United States. It rejected the Doyle estate’s rather novel argument that the great detective is a “complex” character who was effectively incomplete until the author’s final story was published in this country, leaving the entire body of work protected by copyright.  Sherlock Holmes and the mystery of copyright HERE.

Rupert Murdoch's News Corporation Australia has used an inquiry by the nation's Senate into a proposed Australia/South Korea free trade agreement to suggest internet service providers become copyright enforcers. In it's submission to the inquiry, News Corp backs proposals in the treaty to criminalise 'net piracy, and the implementation of legal “incentives” for ISPs to “cooperate with copyright owners in deterring the unauthorised storage and transmission of copyrighted materials”. The move comes against the backdrop of the 2012 decision by Australia's High Court which confirmed that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright.  New Corp's view is that current legislation, the submission says, does not “provide rights holders with means to protect rights online”.

An update on SoundCloud: The online music sharing service is seemingly close to a deal with the largest record labels Universal Music Group, Sony Music Entertainment, and Warner Music Group. Bloomberg says the major labels will agree to licences so SoundCloud can continue play their songs - and avoid potential legal disputes.  It seems SoundCloud is offering the three major labels equity in the company, in exchange for both licensing deals and guarantees not to sue over any past copyright violations when the service shifts to a monetised model. According to Bloomberg, Universal, Sony and Warner are being offered between 3% and 5% of SoundCloud, along with a cut of future revenues.

The Pirate Bay is asking it's users to support the two original founders currently in custody - Gottfrid Svartholm and Peter Sunde with a banner on the website saying “Show your support by sending them some encouraging mail! Gottfrid is only allowed to receive letters while Peter gladly receives books, letters and vegan candy.” Sunde is now serving the sentence he received from the original trial in the District Court of Stockholm, Sweden on April 17, 2009. where the court sentenced the founders to one year in prison (which was reduced in appeal). He is being held in a high security prison in Västervik, although he recently requested a transfer to a lower safety class unit. Svartholm already serviced his TPB sentence, but he has been accused in Denmark of hacking into the mainframe computers of IT company CSC. His new trial starts in two months and he faces up to five years in prison. More on TorrentFreak. 

The U.S. Copyright Office is asking the public to comment on what the Supreme Court’s ruling on streaming TV service Aereo means for the future of copyright law. The office “is interested in commenters’ views regarding the Supreme Court’s opinion in Aereo and how that opinion may affect the scope of the rights of making available and communication to the public in the United States.” Specifically, the office asked how last month’s 6-3 decision affects “unauthorized filesharing,” the right to make content available and other aspects of copyright law. More here.

TechDirt has an interesting take on copyright reforms in the US in an article entitled "Copyright Lawyers Prime The Pump For The Return Of SOPA" which has  a fairly critical response to the American Bar Association's White Paper - which itself can be found here: A Call For Action For Online Piracy And Counterfeiting Legislation.  The House Judiciary Committee is in the process of reviewing various aspects of copyright law for reform - and is currently looking at "Moral Rights, Termination Rights, Resale Royalty, and Copyright Term" covering four very distinct areas of law and policy. Rep. Jerrold Nadler (N.Y.), the subcommittee’s top Democrat, pledged to use the session to advance his bill to grant royalties to visual artists when their work is resold by an auctioneer, collector or other third party. And with moral rights, Rick Carnes, head of the Songwriters Guild of America and penner of songs for musicians including Garth Brooks and Alabama, said that a creator’s right to control the use of their creation is “widely embraced by the American public.” More from the EFF here. And whilst we are on reforms in the US of A - there is a guest blog on Billboard entitled "Our Best Bet for Screwing Up Copyright Reform? More Government Intervention" - it's from David Israelite,  the President and CEO of the National Music Publishers’ Association (NMPA),  the trade association representing American music publishers and their songwriting partners so its hardly unbiased - but worth a read particularly if you are interested in new models of licensing and the role of collection societies in the future. 

The Recording Industry Association of America is taking another public bashing after ReelRadio, a site that streams an archive of often decades-old historical radio shows, was forced to take down much of its library after the RIAA complained that the site was operating outside the terms of its license. In existence since 1996, ReelRadio "still looks and feels like a site from the past" and content includes decades-old ‘aircheck’ demo recordings which were often used to showcase radio announcers before being placed in the archives - but these often contain music controlled by the RIAA's members. It does seem to be acknowledged by Reel that what the RIAA wants is to apply (strictly) the terms of it's licence to use recorded music and Reel President Richard Irwin explained“The RIAA has determined that our service fails to meet the requirements for ‘archived programs’, which must be at least five hours in duration and may not be made available for more than two weeks. The service must also display the Title, Artist and Album of each featured song, but only while the recording is being performed” and  “The RIAA insists that we obtain permission from the copyright owners of these old radio broadcasts. Many broadcasters understand the difficulty of this requirement, since nearly all radio stations have changed ownership, format, and call letters, many times over,” Irwin also explained, adding “Nevertheless, we are expected to provide the RIAA with an explanation of how we have permission from radio stations that no longer exist and copyright owners who have no interest in historic recordings of their property.”

With the Global Repertoire Database stalled,  the world's biggest music publisher Sony/ATV/EMI has announced that its entire songs catalogue can now be viewed and downloaded on its website by music services and other interested parties.  The second biggest global publisher, Universal Music Publishing, has also announced that it will put its database online, although this will begin with its US repertoire before making its global data available.

The author of the massively popular 'Jersey Boys' franchise which charts the rise of Frankie Valli & The Four Seasons and has been made into a book, a Broadway play and now a major motion picture,  is facing an ongoing  legal challenge which began in the federal court in the Beaumont Division of the Eastern District of Texas. Donna Corbello, the widow of Beaumont attorney Rex Woodard filed a suit in late 2007 against Thomas  (Tommy) Gaetano DeVito, one of the original members of the Four Seasons. She claims DeVito wrote a book in 1991 that was identical to one written by Woodard - and that the book became the basis for the “Jersey Boys” musical. The case was transferred to Nevada federal court in July 2008, because  DeVito lives in Las Vegas. The case has been winding its way through the court and there is now a trial date for Feb. 17, 2015, in Las Vegas with Judge Robert C. Jones presiding. 

As the Southeast Texas Record reports, Woodard was a Beaumont attorney and a freelance music writer. He had been a big fan of the Four Seasons and wrote an article on the early days of the band, then decided he wanted to write a book about them. Woodard began interviewing band members and uncovered many new facts, including alleged criminal activities by some band members - and on this basis Woodward seemingly agreed terms on how a book would be written with DeVito - with DeVito getting “top billing” and Woodard’s name also appearing on the published work - and that Woodard would share in the royalties. DeVito has denied that he showed Woodard’s manuscript to anyone, and claimed he had only “told stories to the writers and director.” In a 2012 ruling, Judge Jones found that the agreement made DeVito and Woodard 50 percent joint owners of the work, although DeVito argued that he is the sole author because he had final creative control. The case is now only against DeVito - the court having agreed that the licence to other third parties (for the screenplay and musical) pre-dated the copyright claim and so was valid. 

The CopyKat - Friday's furballs of fun

The Australian internet service provider  iiNET, which has long resisted federal efforts to mandate copyright protection schemes, and which won an important High Court decision in April 2012 that confirmed that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright, has called on its customers to make their voices known by writing to politicians at the heart of moves to introduce legislation which the ISP says would require ISPs such as iiNet to send infringement notices to its customers while, at the same time, blocking certain websites which provide access for customers to download and share unauthorised content. Writing in the iiNET blog, Steve Dalby, Chief Regulatory Officer, notes what he describes as “recycled” claims suggesting Australia is the worst nation in the world for Internet piracy. “This may not actually be the case, but there can be no debate that work still remains to be done to effectively combat piracy,” he says. More on Advanced Television here.

With both the RESPECT Act (which would close the loophole that allows digital music services, like SiriusXM, to stream music recorded before 1972 without paying for the use of the sound recordings, and the Songwriter Equity Act, which if passed would give songwriters more leeway to argue for higher royalties when their songs are played by digital streaming services - facing scrutiny in the U.S. House of Representatives, alongside a new  push was for a comprehensive registry of music, with songs given unique identifiers, so that YouTube, Spotify, Pandora and others could easily determine who owns the various rights to any song in order to assure payment, arguments are mounting for one, combined bill to address music licensing reform. “Consumers don’t know the button they push on their car dashboard or smartphone dictates whether artists are paid,” for that song, said New York Democrat Rep. Jerrold Nadler during a hearing on copyright reform - with Nadler is referring to the patchwork of laws governing compensating music artists whether the song they produced is aired on satellite radio, terrestrial radio or Internet radio. Nadler confirmed he’s working on one "omnibus bill", to bring “fairness and efficiency to our music licensing system, and ensure that no particular business enjoys a special advantage against new and innovative technologies”  in an update to the  subcommittee of the House Judiciary Committee.

A gushing press release from the record label's trade body IFPI tells us that Plácido Domingo, the world renowned artist and chairman of IFPI, has addressed the International IP Enforcement Summit being held in London where he urged governments not to allow copyright to be eroded in the digital age and highlighted the importance of intellectual property enforcement for protection of creators and culture. He told the meeting that protecting and enforcing intellectual property rights “is one of the most important missions in our society and for our culture today.” Domingo added: “There is a view – mistaken in my opinion - that in the digital world copyright matters less than in the physical world.  It is emphatically not so.  In fact, copyright needs protecting as vigorously – if not more vigorously – on the internet.” He addressed the debate around copyright reform in the EU.  “Europe will this year have new Commissioners and a new Parliament.  I urge them, in their review of copyright, to promote and protect copyright, not to weaken it.  Please, do not allow artist and producers’ rights to be eroded.  Rather, look at how they can be better enforced.” Domingo stressed the need for collaboration to protect intellectual property rights in the online world.  “We, in the creative world, cannot protect our rights alone.  We need help from the bigger actors.  The search engines, for example. When someone uses a search engine to find music, they should not be directed to illegal sources of music. This directly hurts artists and other creators.” He also called for help from governments.  “Enlightened governments will understand that strong, properly-enforced intellectual property rights lead to a rich culture and economic prosperity.”

And America's National Music Publishers' Association has estimated that the country's music publishers generate about $2.2 billion in revenue each year, but this is only about half what they should be making because of "outdated copyright law and government regulations". The gripe is really with about the role of the two main collection societies in the USA, ASCAP and BMI, and the major music publishers now want to start negotiating the 'public performance' right with the main streaming services directly rather than through the collective licensing system. NMPA chief David Israelite told reporters: "We are finally able to capture what the industry is worth and, more importantly, what our industry is losing. The new digital marketplace is changing how songwriters and their music publishing partners can thrive. As the marketplace evolves, it is essential our industry no longer be hamstrung by outdated laws and government regulation".

Techdirt tells us about a fascinating court filing made by lawyers acting for Malibu Media who, depending on whose camp you in, are either quite rightly defending the copyrights it owns and represents - or copyright trolls out to extract unneeded dollars from unsullied individuals having filed thirteen hundred lawsuits in the US in the last year. To be fair one US federal judge did support the erotic film company saying “Malibu [Media] is not what has been referred to … as a ‘copyright troll’ ”. Judge Michael Baylson added, “rather, Malibu is an actual producer of adult films and owns valid copyrights.” But now Malibu attorney Mary K Schultz has filed papers that seems to suggest a massive conspiracy against the fikm company - and that conspiracy includes opposing counsel saying:  "Plaintiff is the target of a fanatical Internet hate group. The hate group is comprised of BitTorrent users, anti-copyright extremists, former BitTorrent copyright defendants and a few attorneys. Opposing counsel is one of its few members. Indeed, as shown below, opposing counsel communicates regularly with the hate group’s leader. Members of the hate group physically threaten, defame and cyber-stalk Plaintiff as well everyone associated with Plaintiff. Their psychopathy is criminal and scary"

and  "By administering and using the defamatory blog www.fightcopyrighttrolls.com, “Sophisticated Jane Doe” (“SJD”) leads the hate group. SJD is a former defendant is a suit brought by another copyright owner... She is a self-admitted BitTorrent copyright infringer. SJD’s dedicates her life to stopping peer-to-peer infringement suits" and "Opposing counsel regularly Tweets with the other members of the hate group. Further, his Tweets are often part of a series of Tweets intended to harass Plaintiff and its counsel. Opposing counsel also Tweets about on-going litigation including this case and disparages Plaintiff... He even called Plaintiff a liar."  and "Opposing counsel is SJD’s and the other hate group members’ darling. They give him Kudos as he works toward trying to criminalize peer-to-peer copyright infringement suits."

Never publicity shy, Rightscorp Inc., the digital copyright protection service and of course the provider of copyright monetization for record labels and film companies across the globe, has unveiled brand new technology that could flood the Internet with millions of notices to alleged copyright infringers, according to Arts Technica. The strategy is based on telling the ISPs that they will face a high-stakes copyright lawsuit if they don't forward the notices that Rightscorp creates to their customers. If the ISP agrees, then they will have to forward Rightscorp's notices -  telling end users who have allegedly infringed the rights Rightscorp controls, that they could "be liable for $150,000 in damages unless they click on a provided link and agree to settle their case at a very low price." According to Rightscorp COO Robert Steele, asking for $20 per infringement is a fair way to create a deterrent. The company hopes to make the cost of infringement equal to a standard traffic ticket, while still keeping the threat of statutory damages. "Entertainers don't want to do that very often," said Steele. "They want to make people happy. For most people, a $10,000 judgment is a really tough thing. We're giving an opportunity for people to resolve the matter and recoup some loss to the creative, for a relatively small amount of money."

And finally, a US court has granted a request from MegaUpload founder Kim Dotcom to put two lawsuits being pursued against him from the film and recorded music sectors on hold pending the ongoing criminal investigation into his former business. The stay will be reconsidered in August. Under the motion, the MPAA and RIAA are still free to add extra defendants and otherwise modify their lawsuits while the matter is on hold. Judge Liam O'Grady also agreed that the RIAA and MPAA  were free to take action to stop moves in New Zealand and Hong Kong to return previously frozen MegaUpload assets to Dotcom and his colleagues saying "[T]he court finds that each of the plaintiffs' proposed conditions are reasonable under the circumstances of this case because of the possibility that defendants' assets abroad may become unfrozen. Plaintiffs may institute and pursue any action in the United States or a foreign jurisdiction to preserve defendants' assets in the event that such action becomes necessary".

ISPs and content owners square up in Oz iiNet battle

ZDNet carries a very readable review of some pithy comments made by Music Rights Australia's General Manager Vanessa Hutley, who was speaking at the Australian Copyright Council's Copyright Law and Practice Symposium in Sydney, and some equally forthright comments back from Australian ISP iiNet's chief regulatory officer, Steve Dalby

Australia, along with a recent appellate decision in Holland, has bucked the growing trend for courts to issue blocking injunctions forcing ISPs to block access to websites such as The Pirate Bay. Courts in the UK, Belgium and France have all granted blocking orders and in UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH the Advocate General's opinion was that Member States are to ensure that copyright holders or holders of related rights are able to apply for an injunction against intermediaries (including ISPs) whose services are used by a third party to infringe their rights that a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate. But back in April 2012,  in the iiNet case, Australia's High Court, the nation's highest, gave a clear ruling that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright and case and the Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. In Holland the Dutch High Court overturned a lower court order forcing two internet service providers in the country - XS4ALL and Ziggo - to block their users from accessing The Pirate Bay. Calling the blocks "ineffectual", the court also stated that the blockades "constitute an infringement of [people's] freedom to act at their discretion". That case is now going to the Dutch Supreme Court. But in Australia - the iiNet decision stands.

Hutley's view is that the Australian government should undo what the High Court did. She said that although there has been an explosion in the availability of legitimate digital music services in Australia, such as Spotify and iTunes Radio, they are unable to compete on a level playing field with the likes of the Pirate Bay. ZDNet reports that she said that Music Rights Australia, which represents artists and music labels through the Australian Recording Industry Association (ARIA), supports Attorney-General George Brandis' call for a review of safe harbour for ISPs. Hutley also said she supports blocking websites such as The Pirate Bay through a court order, and rejected criticism that it would lead to internet censorship - with some great quotes!

"The right to go to court and argue a case is not going to kill the internet. Here's a news flash: There were four orders today made in the UK against four major sites and last time I looked, friends of mine in the UK were sending me email," she said.

"Those orders are presently being made around the world, and the internet is not broken. Freedom of speech has not stopped. I think there needs to be a little more calm in this discussion."

"The Copyright Act needs to be amended to force ISPs to 'act reasonably' to prevent their users from infringing on copyright" she said. However, Hutley said she doesn't know what reasonable measures could be used against an ISP's customer, but did say:

"Just to be clear: We're not breaking the internet; it's not about filtering; it's not about censoring creative expression. It doesn't prevent free speech, we're not asking for anyone to be disconnected, we just sort of want them to be slightly educated about what it is they're doing and maybe ask them to go somewhere else to get the music they're using," she said.

"It won't result in a lot of litigation. It isn't about that; it's about giving the space to the genuine, fully-licensed, legal services to compete head to head and actually give consumers the music they want."

Hutley made it clear that suing customers is no longer a priority, and that MRA had no interest in individual customer's details, and admitted that she doesn't know how much it would cost ISPs to implement blocking orders or a 'three strikes' system, and said it never came up in the three years the ISPs were in discussions with content owners and the Attorney-General's Department although she did say "Every time [ISPs] do something that [they] have an obligation to do, based on that balance, [content owners] will pay". 

iiNet's chief regulatory officer Steve Dalby, who was a participant in the roundtable discussions before they came to an abrupt halt last year, told ZDNet that costs were repeatedly brought into the discussion, but it wasn't about the quantum so much as the principle of the liability for costs saying "The content owners' principle being that they want to stop what they described as losses, by having ISPs incurring costs by harassing customers" and "Our principle was that according to law, we have no obligation to incur costs by protecting third parties' rights" adding "It's not our industry's job to do their work for them, and that includes putting proposals forward to solve their problem" and rather bitingly commented on content owners actions as ""The only proactive steps they've taken is lobbying incessantly with cries of 'somebody do something' [and] failing miserably in the High Court to prove that ISPs are at fault for their failed business model."

For a TPP perspective and opinion see http://www.huffingtonpost.com/bea-edwards/the-us-and-australia-prop_b_4956635.html "The US and Australia Propose an End to Free Speech on the Internet". 

iinet comes down on the side of ISPs

Australia's High Court -- the nation's highest -- has given a clear ruling that internet service providers are not liable for authorising copyright infringement by making their services available to people who do infringe copyright. The High Court unanimously dismissed the appeal in the case and the Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts. For these reasons, the Court held that it could not be inferred from iiNet's inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants' films by its customers. Its all on the IPKat, in a blog written by Jeremy and rather than repeat this, just click here for the full story. ROADSHOW FILMS PTY LTD & ORS v iiNET LIMITED [2012] HCA 16 and more here http://www.zdnet.com.au/iinet-afact-plot-the-way-forward-339336379.htm

iinet avoid infringement liability in Oz

The Australian Federation Against Copyright Theft (AFACT) has lost its appeal against Australian ISP iiNet. In the absence of specific legislation in Australia, AFACT, representing the TV and movie industries, had argued that net companies had an obligation under Australian copyright laws to take a proactive role in policing online piracy and that the Australian ISP was responsible for illegal content downloading by its users. The acts of copyright infringement in issue in the case were copies of films illegally accessed by iiNet users using the BitTorrent system of file sharing. Under the Australian Copyright Act an intermediary that authorises the infringing conduct is also liable for infringement. To be liable for authorisation, a party must sanction, approve or countenance the infringement. This will depend on the extent (if any) of the relationship with the infringer, its power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement (1).

Australian courts had previously found that Kazaa was liable for ‘authorising’ infringement (2) and clearly content owners were hoping that the courts would extend copyright law to include a duty on ISPs to monitor and filter unlicensed content on their networks, and/or to find that that a failure to do so would make them guilty of authorising. A majority of the three judge appeal panel in the Full federal Court dismissed the appeal from a lower court’s decision (Justce Cowdroy) holding that even though iiNet was dismissive of copyright infringement complaints, that fact alone did not mean it was liable for authorizing infringement. All 3 justices in the appellate court found that in appropriate circumstances it was appropriate to disconnect customers (one even outlined a potential termination strategy). In a dissenting judgment, Justice Jagot held iiNet liable for authorising users’ acts of copyright infringement and that the trial Judge had erred in holding that the relevant test was whether iiNet had provided the ‘means’ of infringement.

AFACT still have the right of further appeal to the Australian High Court. iiNet CEO Michael Malone welcomed the ruling, saying "Today's judgment again demonstrates that the allegations against us have been proven to be unfounded. We urge the Australian film industry to address the growing demand for studio content to be delivered in a timely and cost effective manner to consumers, and we remain eager to work with them to make this material available legitimately". In response to the judgment AFACT’s Executive Director Neil Gane told reporters "it cannot be right" that an ISP takes no responsibility for copyright infringements on its network.

Interestingly Google recently announced a number of new initiatives it says will help combat copyright infringement online, including a new promise of 24-hour turnaround on takedown requests, and preventing terms associated with piracy from appearing in its "autocomplete" search results – including terms associated with BitTorrent and utorrent, RapidShare and Megaupload. As the ‘dumb pipes’ start to look more and more clever the protection of ‘safe harbour’ provisions must surely look more and more unfair to content owners. Google recently concluded a deal with ISP Verizon where it seems Verizon agreed to prioritise certain internet traffic, Google also told the music industry that they could remove pirated material IF they got paid, and auction site eBay agreed to police their own site for London 2012 Olympics tickets – all signs that perhaps the dumb pipes aren’t that dumb after all.

http://www.freehills.com.au/6985.aspx

http://www.dlaphillipsfox.com/article/1016/iiNET-wins-but-the-door-is-left-ajar-for-copyright-owners

(1) http://www.swaab.com.au/publications/hollywood-studios-lose-to-isp-iinet-in-copyright-authorisation.html

(2) http://www.guardian.co.uk/technology/2005/sep/05/media.australia

Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23