In what is likely to stimulate a collective sigh of relief from Australia’s ISPs, the High Court has unanimously dismissed Roadshow Film’s (and others) appeal from the decision in the Full Federal Court.
While the case did not directly involve the music industry, representative bodies from the major labels were said to be looking in to the case as a precedent for future legal action.
The central issue on appeal was whether iiNet had the ability to prevent its customers from downloading and uploading copyright protected content using the BitTorrent system.
On this matter, Chief Justice French and Justices Crennan and Kiefal stated: “…the extent of iiNet’s power was limited. It had no direct power to prevent the primary infringements [BitTorrent uploads and downloads by iiNet customers] and could only ensure that [primary infringements would not occur] by terminating the contractual relationship it had with its customers.”
The court also recognised that “any wrongful termination of a customer’s account could expose iiNet to risk of liability … these considerations highlight the danger to an ISP … which terminates (or threatens to terminate) a customer’s Internet service in the absence of any industry protocol binding on all ISPs…”
In light of this decision, it will be interesting to see how the Australian copyright industry moves forward in its push for the introduction of a graduated response scheme (a three strike policy whereby a customer’s internet access can be terminated when the are detected infringing copyright for a third time).
In light of both the High Court and the Full Federal Court decision, it would appear that any scheme would require copyright holders to indemnify ISPs in the event an ISP erroneously disconnected one of it’s users on copyright infringement grounds.
That said, the industry may find some substance in one statement by the High Court: “Regrettably, on receiving a [warning notice to discontinue infringing activities] it is possible for a customer to engage another ISP for access to the internet on the computer or access the internet on another computer using a different ISP.
Whilst any new infringement would be just as serious as the specific primary infringements about which the appellants complain, this circumstance shows the limitations on iiNet’s power to command a response from its customers, or to prevent continuing infringement’s by them.”
Whilst this statement is clearly to iiNet’s favour in the case, it does raise the question of whether the only effective way to curb copyright infringement would be to institute an ISP industry wide blacklist for repeat offenders.
This would mirror the current system in place in France, however the legislation there has come under repeated attack from human rights groups who have argued that blacklisting an individual from the Internet at home constitutes a impingement on his or her right to free speech.
Whatever the case may be, there are indeed interesting times ahead for both Internet users and copyright holders alike.
