“The mere provision of access to internet is not the means to infringement”.
This comment was made by Judge Cowdroy, the presiding judge in the case taken against Aussie internet service provider (ISP) iiNet by Hollywood rights owners, represented by AFACT (the Australian Federation Against Copyright Theft).
Pat Pilcher in the NZ Herald wrote about this last night.
AFACT accused iiNet of authorising ‘torrent’ downloads by not acting on known copyright infringements by its subscribers. In other words; of allowing illegal file sharing to occur.
Presiding judge Justice Cowdroy cleared iiNet of allegations that it had authorised subscribers to violate copyright laws and ordered the applicants, 34 rights owners to pay iiNet’s costs.
Importantly, Judge Cowdroy stated that iiNet has no control over BitTorrent and could not be held responsible for the actions of its subscribers.
It’s an important decision, though no doubt the fine print will be poured over and AFACT wont just roll over.
David Farrar at Kiwiblog posted on this last night with a good little summary saying this was the first ruling in the world as to whether ISPs can or can’t be liable for what their customers do.
In NZ, the National Government is about to reintroduce copyright legislation that allows for termination of an internet account for repeat coppyright breaches. The responsibilities of the ISPs in illegal file sharing have been the subject of a lot of attention.
I hope our government is looking closely at this decision and determining whether there are implications for the the reintroduction of Section 92A.
“no doubt the fine print will be poured over”
I can spell better than my parliamentary representatives?
One weeps for the future of the country.
The other highly relevant part of the judgement was this:
“The judge agreed, saying that the law “recognises no positive obligation on any person to protect the copyright of another. The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts.”"
It’s high time the content industries recognised the fact that the Internet industry is not their unpaid enforcement arm.
I’m not sure how relevant this decision will prove to be to our own copyright laws, especially if the proposed alternative to section 92a is implemented.
The current proposals being put forward by the Government are much more prescriptive in terms of the responsibilities of ISPs than those under Australian law. Under the Cabinet Paper proposals ISPs will be able to rely on “safe harbour” provisions only if they comply with the proposed notice regime.
damn it, Clarke stole my thunder…. That was the most critical thing the judge said. It’s not my job or any one elses job to protect the copyright of a third party. I don’t know if that is how the law is written here though…. Someone might know…..
No it’s not how the law is written here. Our copyright laws in this area are quite different to the Australian ones, and iiNet relied on safe harbour provisions that don’t currently have any equivalent in NZ law. So I’m not sure what precedent value it might have here. That depends on the final form of the law that comes out of Simon Power’s cabinet paper.
actually, “Justice Cowdory agreed and said that, while iiNet was entitled to protection under the Safe Harbour provisions, there was no need for iiNet to take advantage of this as he did not find it authorised its users’ copyright infringement.” So the safe harbour provision wasn’t really instrumental in the decision…
As I understand it, our redrafted s92 still makes ISPs part of the enforcement mechanism. ACTA also has implications along those lines, thanks to the influence of the American entertainment industry.
I would be asking why our MED officials feel their job is to uphold American corporate interests rather than those of New Zealand’s citizens and innovative businesses.
n0exit, good point. I haven’t read the case – only a few details from teh interwebs. But it looks like the judge didn’t need to examine the safe harbour provision in the end, because there was no “authorisation”.
We have something similar here (s92B Copyright Act), though I suspect things may change once the proposals in the cabinet paper make their way through the legislative process and into law – so I’m not certain how much precedent value this case will have. Time will tell.
I’ve always had a problem with this:
I go and buy a knife from the Warehouse. Now, there are perfectly legitimate uses for the knife but instead I go and stab someone with it.
Is the Warehouse ever expected to monitor my usage of that knife?
Why are ISP’s being asked to police what goes through the network?
Depending on how you read it, the decision appears to say that ISPs have no responsibility for what people do with their internet access, presumably in the same way that Telcom has no responsibility for a customer’s misuse of a phone, or the post for a letter that defames someone, or transports a disc with illegal material on it. ISPs provide a service, and aren’t policemen. The copyright arguments are really arguments by makers of plastic (CDs and DVDs) to have a right to continue their outdated business model. The sooner artists figure out how to extract money from the end consumers without a “plastic” middle man, the sooner all these arguments will die a death.
Back in the 17th century, King Charles I managed to make himself unpopular. One of the ways he did that was by messing with the postal service.
After promising to fix many things (including the postal service), Oliver Cromwell then proceeded to subject the postal service to even more scrutiny, ostensibly to catch terrorists, um, sorry, royalists.
After several years of being a black hole into which letters and parcels disappeared without trace, the postal service basically went broke because nobody in the right mind would use it.
When King Charles II reinstituted a mail service he made two important changes:
1. It was granted right of transit across the whole country and not subject to internal boundary tolls; and
2. It would be FREE OF CENSORSHIP and political interference.
As a result, it was actually trusted, and significantly cheaper to run; with the Penny Post business even ordinary commoners could afford to use it, and they haven’t looked back since.
Those who forget (or ignore) history are doomed to repeat it. Let’s not!