Kylie Pappalardo has an excellent case note on Telstra Corp Ltd v Phone Directories Pty Ltd  FCA 44 (Full decision). This case continues the process that began when the High Court tightened the requirements of originality and authorship in IceTV, applying that logic to contain the previous FCAFC authority of Telstra v Desktop Marketing Read more about Casenote: Telstra Corp Ltd v Phone Directories Pty Ltd  FCA 44[…]
Michael Geist is reporting that the text of the secret Anti-Counterfeiting Trade Agreement (ACTA) chapter on internet enforcement has been leaked. As suspected, the text is unlikely to require major changes to Australian law, but it does do two very concerning things:
- Increased pressure on intermediaries (ISPs) to monitor and police their networks: in the recent iiNet litigation, the Federal Court found that ISPs were under no obligation to terminate the accounts of subscribers that the film industry alleged (without proof) were infringing copyright. This is a contentious point, and we expect to see the copyright industry lobby for legislative change. The ACTA provides them with more ammunition to argue for a three-strikes policy, which is unfortunate.
- Increased entrenchment of the harshest level of copyright sanctions: my biggest concern with ACTA is what it means for the way that international copyright law is developed. Copyright is such an important part of the framework that governs the way that we interact online – it underpins nearly every aspect of modern communication. Because the balance between providing authors with an incentive to create and users with the ability to access is so critically important, the way in which copyright policy is made is also critically important for a society. The ACTA, a secret plurilateral agreement, ensures that the role of the public is minimised, allowing corporate rightsholders to set the agenda for copyright policy.
A few weeks ago I lodged EFA’s submission on legitimacy and transparency in Mandatory ISP Filtering, written by myself, Kylie Pappalardo and Irene Graham. We received a lot of negative feedback at EFA for engaging with the DBCDE on this issue, but I think it’s very important. Stepping back from my opposition to the Labor Government’s plan to introduce mandatory filtering, the issue is theoretically quite complex.
[edit: now with more slides! PDF (3MB) ODP (5MB)] My final seminar for my PhD is this Tuesday. All are welcome; let me know if you’re interested in coming along! Date: Tuesday 16 February 2010 Time: 11:00am -12:00pm Venue: Z Block Room 1124, QUT Gardens Point campus Panel Chairperson/Principal Supervisor: Prof Brian Fitzgerald, Faculty of Law Read more about PhD final seminar: Digital Constitutionalism and the Role of the Rule of Law in the Governance of Virtual Communities[…]
Warwick Rothnie is reporting that the Federal Court has declined to follow Desktop Marketing (which held that telephone directories were protected by copyright in 2002) in light of the High Court’s decision in IceTV (which held that copyright was not infringed by taking time and title information from a timetable). Decision is here: Telstra v Read more about Big news: Fed Court of Australia rules no copyright in telephone directories[…]
Justice Cowdroy’s decision in Roadshow v iiNet held that a person who provides facilities that are used for infringement but does not play a more active part — for example by intentionally designing the system to profit, or providing facilities in circumstances where there are only limited non-infringing uses, or explicitly inviting or promoting the use of the system for infringement — will not be held to ‘authorise’ those infringements, because it does not provide the ‘means’ for infringement.
This construction minimises the role of the Category A safe harbour, which is designed to insulate ISPs who “facilities or services for transmitting, routing or providing connections” (s 116AC) for copyright material from monetary damages for copyright infringement. What is the extent of the overlap between this safe harbour and Cowdroy J’s intrepreation of authorisation for ISPs?
The ‘means’ of infringement: tracing a line through Moorhouse, Tape Manufacturers, Cooper, and Kazaa (via Sony)
The iiNet judgment traces an interesting line through authorisation liability in the context of technology cases. Cowdroy reads the technology authorisation cases (Moorhouse, Australian Tape Manufacturers, Cooper, and Kazaa) as predicating liability firstly upon whether the defendant has provided the ‘means’ of infringement; a complex factual determination that depends on the context, but seems to implicitly incorporate the Sony test of whether the technology has substantial non-infringing uses and an intention test that goes to the design of the system and the invitation to infringe.
The conclusion that Cowdrow J draws is that iiNet does not provide the ‘means’ to infringement, because (a) the internet has many ‘lawful uses’ (Tape Manufacturers) (cf Sony, ‘substantial non-infringing uses’); and (b) iiNet has not actively supported the system that is the ‘means’ of infringement (the BitTorrent system, as a whole). Crucially, one does not infringe merely by using the internet – users need to do something else (seek out BitTorrent trackers and files) in order to infringe. If iiNet had played a more active part in the infringement, then it may be seen as providing the ‘means’ (in Moorhouse, this was by providing a copier in a library and effectively extending an invitation to infringe (per Jacobs J) or where it was ‘likely’ to be used for infringement (per Gibbs J); in Kazaa this was the advertising, predominantly ‘join the revolution’; in Cooper it was the knowledge and intent that most files on the website were infringing). What makes this interesting is that ‘means’ appears to incorporate intent in some way, although it is not exactly clear how this plays out.
Only after the ‘means’ are identified do the other factors become relevant – control, power to prevent, and knowledge of infringements. It would seem that the best reading of Cooper is that the ISP in that case was that while it did not provide the ‘means’ by hosting Cooper’s website, it was drawn into his infringement by the support it gave him with knowledge and intent that the files were predominantly infringing. No such relationship of control or support existed between iiNet and anyone providing BitTorrent services.
Much of this reasoning appears to depend on a finding that the internet is much more useful for non-infringing uses (not a ‘human right’, but performs a “central role in almost all aspects of modern life”).() This distinguishes general technologies that “have lawful uses” (Tape Manufacturers) from technologies like Kazaa and Cooper’s website, whose ‘predominant’ or ‘overwhelming’ uses are to infringe (). This seems explicitly draw Australian authority into line with the development of US authority in Sony, that developers will not be liable for products that have “substantial non-infringing uses”, and the exception that was drawn in Grokster holding developers liable where they ‘induced’ infringement. In this way, Cowdroy neatly reads Moorhouse in line with Sony and both Cooper and Kazaa in line with Grokster.
This is actually quite a neat distinction. Rather than treating every link in the chain that makes infringement possible as the ‘means’ of infringement and then having to carefully examine factors such as control, power to prevent, and knowledge, Cowdroy J has managed to articulate a distinction between mere facilities and services that are actually either designed to aide infringement, promoted to do so, or have little other purpose than to facilitate infringement. This puts an end to the classic confusion – if iiNet are liable for the acts of its users, surely the electricity company can also be liable, because but for their power, infringements could not occur. By interpreting ‘means of infringement’to require some more active role, Cowdroy J has created some certainty for the providers of general use technologies.
The role of s 101(1A)
A potential problem on appeal may be whether this definition of ‘means’ is consistent with s 101(1A), which requires that in addressing authorisation, a court must take into account control (power to prevent), relationship, and reasonable steps taken. If the enquiry is ended by the definition of ‘means’ of infringement, these factors may not be adequately taken into account. Justice Cowdroy dealt with this by relying on Kazaa and Metro as authority that 101(1A) did not change the common law for authorisation(); the statutory considerations are therefore relevant, and must be considered, but they seem to be subsumed within the threshold question of whether the respondent provided the ‘means’. So, in this case, iiNet did not have a power to prevent because they had no control BitTorrent – which meant that iiNet did not provide the ‘means’.(,) Similarly, there was nothing in the relationship of iiNet with its subscribers that suggested that iiNet authorised their infringements – unlike Kazaa.() Finally, the Court found that iiNet had no reasonable steps it could have taken to prevent infringement.() It would seem, in Cowdroy J’s framework, that if any of these factors were different, iiNet may be taken as having provided the ‘means’ for infringement (though they are not determinative of themselves). The same goes for knowledge and encouragement, which are relevant but not statutory factors.(, ). More analysis is required as to how exactly the statutory factors inform both the finding of whether a technology provides the ‘means’ of infringement and the questions that must be asked after the means have been identified, but, as a complex question of fact, Cowdroy J’s use of a distinction based upon the ‘means’ does not seem to fall into an error of law and seems to provide a useful way to distinguish active from passive actors.
[ edit: full decision is now available: Roadshow Films Pty Ltd v iiNet Limited (No. 3)  FCA 24. More commentary to come. ] More analysis on iiNet, after I have seen the written summary of the judgment. Justice Cowdroy found that iiNet did not ‘authorise’ the infringements of its users. In coming to this Read more about iiNet did not ‘authorise’; providing internet access is not providing the ‘means’ of infringement’; safe harbours are effective[…]
And with one tweet, iiNet CEO Michael Malone announces the result that we’ve all been waiting for: IiNet did not authorize the infringements #iitrial More analysis will follow when the full written judgment is handed down, but it is apparent that the Judge was convinced that iiNet has no control over bittorrent and is not Read more about Sanity prevails: iiNet did not authorise its users’ infringements[…]
There has been a lot of discussion about the recent changes to the South Australian Electoral Act 1985, and in particular the amendment to s 116 which extends the requirement of attribution to the internet.
The law seems poorly drafted and unworkable, but it may not pose as much of a threat as is suspected. See over the jump for my analysis.