The pirates themselves are too hard to catch individually, and suing customers is
not a good look for film studios.
THE High Court has decided that an internet service provider (ISP) is not liable for
any copyright piracy by its customers.
Even though the Hollywood movie studios and television networks had notified the
ISP of the bad conduct of several customers, that was not sufficient to make the ISP
liable. The decision is not a surprise. Australia Post is not liable for copyright
infringement if it delivers a pirated DVD. The court has confirmed that the same
rules apply to ISPs.
Copyright owners prefer to bring legal actions against intermediates, rather than end
users. It is not a good look to sue customers, even if they are engaged in infringing
activities. Also, it is harder work to find and sue each person who downloads a
pirated movie. Bringing legal proceedings against ISPs, which are the gatekeepers to
the internet, seemed like a more efficient approach to stopping infringement. But the
High Court has taken away that weapon for copyright owners in this instance.
In doing so, the High Court is not condoning copyright piracy. The movie studios
may still have their day in court, but this time they chose the wrong target. Simply,
an ISP does not authorise the bad conduct of its users when on the internet.
There is tension between the rights of copyright owners to prevent wholesale
copyright infringements and the rights of technology providers to provide innovative
ways to access and distribute content. Many cases are at present before the courts
concerning the liability of internet intermediaries. Google is appealing against a
recent decision in which the Australian Federal Court found it liable for misleading
advertisements placed by advertisers on its search engine results pages. Viacom is
suing YouTube in New York for hosting and distributing copyrighted movies and TV
shows posted by users. The US government is prosecuting Megaupload for criminal
copyright infringement in relation to its customers’ conduct in using its cloud
computing service.
The High Court’s decision is merely one battle in this copyright war.
The movie studios cannot appeal against the High Court decision to another court
but they can lobby the government to refine copyright laws in this area. It is a
dangerous pathway, which the government may be loath to tread. Recent lobbying by
the studios in the US to change US copyright laws in this area backfired when Google
and other internet companies strongly opposed such changes. The proposed new
laws were shelved.
The Australian government may be hoping that the studios and the ISPs can work
out a practical solution to these issues, for example, by way of an agreed code of
conduct rather than new laws.
Any new law in this area must balance the rights of copyright creators, copyright
owners, users and technology providers, to ensure that legitimate uses of technology
are not stifled by overreaching laws. But at the same time, effective mechanisms are
needed to stamp out illegal copyright piracy. Getting the right balance is critical in
this information economy.
John Swinson is a partner with law firm King & Wood Mallesons – SMH – April 21,
2012