DRM News

As reported on Ars Technica, Australia’s Federal Court has made a ruling that Internet Service Providers (ISPs) are under no obligation to act on copyright infringement notices passed on to users by media companies. The ruling was handed down today.

The case stems from movie studios being angered when iiNet refused to act upon warning letters sent by the studios to various iiNet customers alleging illegal downloading as a basis for cutting off Internet service to those customers. Instead, iiNet sent the notices on to the police, saying that it was not a legal body capable of determining guilt. The movie studios responded by suing iiNet in 2008 under claims that the ISPs inaction counted as ‘authorizing’ piracy.

iiNet CEO Michael Malone explained that while his company does have a policy of Internet termination for those proven to be infringing upon copyright, the notices he was receiving from the studios were simply alleging infringement. He made similar comments in a 2008 article in ComputerWorld Australia concerning the case :

We have been passing on all those complaints directly on to the state police—who are in our building. They send us a list of IP addresses and say ‘this IP address was involved in a breach on this date.’ We look at that say, ‘Well, what do you want us to do with this? We can’t release the person’s details to you on the basis of an allegation and we can’t go and kick the customer off on the basis of an allegation from someone else.’ So we say, ‘You are alleging the person has broken the law; we’re passing it to the police. Let them deal with it.’

And the judge in this case agreed.

saying that the law “recognises no positive obligation on any person to protect the copyright of another. The law only recognises a prohibition on the doing of copyright acts without the licence of the copyright owner or exclusive licensee, or the authorisation of those acts.”

The judge also stated that he found fault with any system where the party claiming theft also makes the determination of guilt or innocence in the matter with no input from a legal body.

Furthermore :

Finally, the judge addressed a key worldwide issue in copyright law, the “making available” doctrine. The idea here is that simply making a file available on a P2P network is itself infringement, even if no one downloaded the file. Under Australian law, the judge accepted that “making available” was an infringement of copyright, but he noted that movie studios were pushing the principle to its breaking point.

“The applicants claim that a new ‘make available online’ infringement occurs each time an iiNet user is disconnected and reconnected to the internet,” he noted. “Further, the applicants submit that even if this not be the case, there must be a temporal aspect to the ‘making available online’ act such that infringements over a long period of time could constitute more than one infringement.”

Such a policy could result in hundreds of infringement claims against a single person over a single film, simply because they connected and disconnected from the swarm many times. The judge rejected this, saying that the studio view “would produce an entirely arbitrary and random result, in respect of the number of copyright infringements.”

Nobody denies that copyright infringement occurs online. Nobody denies that rights holders do indeed have a right to go after those stealing their material. The part that people have a problem with is those rights holders declaring themselves judge, jury and executioner.