ISOC-NY NOTICE BOARD

Internet Society New York Chapter 4:46 am on 02/25/2010 Permalink Reply
Tags: australia ( 8 ), copyright ( 86 ), isp ( 4 ), law ( 47 )   

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  joly 5:32 pm on 02/25/2010 Permalink | Reply

  More details of AFACT’s grounds for appeal are here.

  Central to the appeal is an argument that the judge applied an incorrect test for whether iiNet “authorised” the copyright infringement.

  Also AFACT will:

  • seek to overturn the ruling that iiNet had a repeat infringer policy that allowed it to claim safe harbour under the Copyright Act.
    • challenge Justice Cowdroy over his reasons for rejecting evidence.
    • raise further questions over what could be inferred from iiNet’s choice of witnesses. The film industry had questioned in the trial why staff with more intimate technical knowledge of the iiNet network were not called on to give evidence.
  • question the number of infringements, which was a contentious issue in the case.
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  joly 3:45 am on 02/26/2010 Permalink | Reply

  I thank Paul Brooks for the following info:

  Five ways AFACT lost-the-iiNet case

  I won’t quote the whole article, but one section jumped out to me as being of special relevence to this group (emphasis added by me):

  ”

  2. The time didn’t fit the crime

  AFACT put forward an argument that because iiNet had failed to stop users infringing copyright on its network, it had “failed to take reasonable steps” to gain protection under safe harbour provisions of the Copyright Act.

  But as John Fairbairn, partner at Clayton Utz points out, AFACT “held out” on defining what reasonable steps would have been beyond disconnection of a customer.

  As such, there were “no other reasonable steps” the judge could focus on.

  The Court found that iiNet’s only power to prevent infringement – to terminate users – was not a relevant power under the Copyright Act.

  Justice Cowdroy then found that cutting off access was not a reasonable step.

  “The Court does not consider that warning and termination of subscriber accounts on the basis of AFACT Notices is a reasonable step,” Cowdroy’s judgement said, as it would “also prevent that person or persons from using the internet for all the non-infringing uses.”

  In doing so, Cowdroy gave full appreciation to the significance of internet access and what it means to Australians, and the role of the courts in determining infringement.
  …and later…

  ”

  “AFACT’s notices were found to be defective because they did not establish copyright infringement as AFACT kept its methodology secret, they did not have any assurance of their veracity or indemnify iiNet for reliance, and they did not make clear AFACT’s right to give them on behalf of copyright owners,” said Australian Digital Alliance’s Dawes.

  “Thus, iiNet was entitled to be sceptical about the claims being made. Therefore it had no ‘knowledge’ of the alleged infringements by its users.”

  Determinations of infringement are complex, Cowdroy’s judgement said, and should only be made by a court. To do otherwise, he said, would be “highly problematic.”
  ”

  P.

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  joly 5:18 pm on 03/18/2010 Permalink | Reply

  News comes today that iiNet have filed a notice of contention in the appeal

  http://www.zdnet.com.au/iinet-contests-cooper-copyright-judgement-339301882.htm

  The first issue iiNet is contending relates to Section 112E of the Copyright Act 1968, which states that a carriage service provider that “facilitates … a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities”.

  Cowdroy had said in his decision that he was bound to rule in line with the 2006 case, Universal Music Australia versus Cooper copyright case, in which the Full Court — on appeal — decided a critical factor was whether the service provider had knowledge of copyright breaches occurring on its facilities.

  The judge found that iiNet did have knowledge that infringements were occurring on its facilities, therefore the protections under 112E “ceased to have operation”.

  Cowdroy’s overarching decision was that iiNet had not authorised its customers’ infringements, which meant in terms of his final decision the point was moot. Yet it may come into play in the upcoming appeal process in which the legal teams of both sides will contest iiNet’s alleged authorisation of its customers’ breaches.

  The second point of contention was Cowdroy’s decision that privacy provisions under the Telecommunications Act did not prevent iiNet from using its customer information to assist AFACT’s investigations. The question here was whether iiNet had the power to prevent infringements on its network and whether it took “reasonable” steps to prevent this from occurring.