Friday 14 March 2014

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 "The US and Australia Propose an End to Free Speech on the Internet". 

1 comment:

Cyberleagle said...

The plaintiffs in the iiNet litigation argued unsuccessfully that iiNet itself infringed copyright by authorising its users' infringements.

The EU blocking injunctions are against ISPs who, it is accepted, do not infringe.

The two are quite different: conceptually, jurisdictionally and in the balancing of interests when an injunction is sought against a third party acting lawfully rather than against an infringer.