Brandis’ leaked anti-piracy proposal is unrealistic

Originally posted on The Conversation by Nicolas Suzor and Alex Button-Sloan.

The Australian Government has proposed Internet Service Providers (ISPs) should monitor and punish Australians who download and infringe copyright.

In a discussion paper circulated by Attorney-General George Brandis, and leaked by Crikey last Friday, the government proposes a sweeping change to Australian copyright law that would force ISPs to take steps to prevent Australians from infringing copyright.

What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.

The move comes in response to claims that Australians are among the biggest downloaders of films and television series. Under intense pressure from Hollywood and Foxtel, the government wants to do something to combat copyright infringement.
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iiNet: What of the safe harbours?

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?
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