Monday, February 28, 2011

AFACT and iiNet

The decision in the AFACT appeal in the iiNet case has led to much commentary.

Typical in the IT news have been the suggestion that the copyright holders continue to misrepresent the extent of copyright theft, and the repetition of the ISP industry claim that they are a mere conduit.

The decision in fact really went mostly the way of AFACT. As they outlined in their press release. As the article in The Age more succinctly put it;

It considered that iiNet, by sitting on its hands, would have been liable for authorising the infringements if the notices had contained more verified and more specific information. However the notices given by the film companies were, in the form that they were given, insufficient to require iiNet to take steps to prevent the infringements...

Although iiNet won the appeal, this was simply because of the shortcomings in the way that the notices had been given. Copyright dependent industries now have guidance on how to give ISPs notices that will require ISPs to take reasonable steps to limit the notified infringing activity, or else be liable for authorising its continuance. ISP immunity from damages is now conditional upon ISPs adopting realistic repeat-infringer account termination policies.

It is important to address the "mere conduit" argument that the second referred article relied upon, and which the industry association the IIA also wanted to rely upon. The comment on the itWire story from Verity Pravda really nails it;

Let's be really simple about this, if I assist you to commit a crime it really is my intent that matters.

At the simplest level if I don't know you are committing a crime and do nothing to encourage it, I am blameless. If you rob a bank and catch a ride in my taxi for the getaway I am not an accomplice.

If I say you can borrow my car and I have no idea what you want to use it for and you use it as the getaway car then I am also blameless. If however I say "if you want to rob banks you can borrow my car for the getaway" or if someone else tells me you've been robbing banks when you borrow my car and I then do nothing about it you then are an accomplice.

iiNet got off on the first of these - just. ISPs need to be very cautious about promoting the use of their services for downloads. (The specifics were the accusation that iiNet promoted downloading something in an ad that at the time could only be downloaded from a copyright infringing source. Part of the issue is its not the downloading that creates the copyright breach).

It got off on the second because AFACT did not craft its notices well. If AFACT takes a more co-operative approach rather than demanding approach with ISPs it will do better.

The appeal also did wonders for the regulatory compliance industry. The trial judge had found iiNet could use safe harbour provisions because iiNet had a disconnection policy that was, in effect, in the CEOs head. All three appeal court judges found that not to be the case, that actually a policy needs to be expressed in more detail and formally adopted.

Novae Meridianae Demetae Dexter delenda est

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