Music dowloading copyright issues

Net piracy fight takes body blow
ASHER MOSES
February 5, 2010



HOLLYWOOD studios and record labels are being forced to go back to the drawing board to come up with a new way of combating online piracy after the Federal Court ruled that internet service providers are not required to police copyright infringement on their networks.

The music industry says it may have no choice but to sue individuals for illegal file sharing unless the federal government intervenes with a solution to its piracy woes.

All the major film studios sued iiNet in an effort to force the internet service provider to warn and even disconnect customers who repeatedly download movies illegally.

It was the first case of its kind in the world and the first time an Australian trial had been covered live on Twitter.

In a landmark judgment handed down yesterday morning, Justice Dennis Cowdroy rejected the Australian Federation Against Copyright Theft's claim that iiNet ''authorised'' its customers' copyright infringement by failing to act on thousands of infringement notices sent to it by AFACT.

Justice Cowdroy found iiNet had done no more than provide an internet service to its users. He said iiNet did not have control over its customers' use of the BitTorrentfile-sharing software, which customers used to infringe the studios' copyright.

He said: ''iiNet is not responsible if an iiNet user uses that system to bring about copyright infringement … the law recognises no positive obligation on any person to protect the copyright of another.''

Tony Joyner, a partner in the technology and IT group at law firm Freehills, said he was particularly interested in the government's response because the online piracy issues raised by the studios at the trial remained a ''very big and real problem''.

''Everything iiNet says is rational,'' he said. ''They're saying we're just a simple conduit and if people are doing bad things it's not up to us to be the police. The studios are also being very rational and saying it's happening on your turf, so we need you to do something.''

The case, while brought by the film studios, also has a big impact on the music industry, which was hoping for a precedent it could use to force ISPs to co-operate on reducing online piracy. Sabiene Heindl, general manager of the music industry's anti-piracy arm, Music Industry Piracy Investigations, said: ''Today's Federal Court decision suggests that copyright owners broadly may have no choice but to sue individuals for illegal file-sharing. This would be a most unfortunate outcome.''

AFACT executive director Neil Gane said he had 21 days to decide whether to appeal. The studios would now increase their lobbying of the government to change the law to force ISPs to be liable for the downloading habits of customers.

''We are confident that the government will not support a policy outcome which allows for the copyright infringement to continue unabated,'' he said.

Freehills' Mr Joyner said: ''I think the only way there won't be a legislative response is if … an appeal will occur and has some chance of succeeding relatively quickly.''

In July last year, Communications Minister Stephen Conroy said he was awaiting the outcome of the iiNet case before deciding whether there was a need for legislative change. Yesterday, his spokeswoman said the government would examine the decision before making any further comment.

Senator Conroy had appeared to be on the side of the studios, saying at a conference in April last year that iiNet's defence in the case ''belongs in a Yes Minister episode''.