a roll of the dice

You might remember this from a few days ago - a federal minister reading directly from the film and music industry script about the evils of piracy.

Now, in what seems not to be a coincidence (perhaps a coordinated campaign was agreed to in some Bond villain-esque meeting room), the film studios have decided to have a serious crack at on-line piracy in Australia by suing iiNet in relation to the distribution of copyright material via bittorrent by its users.

I checked out the claim (Roadshow Films Pty Ltd ACN 100 746 870 & Ors v iiNet Ltd ACN 068 628 937; Federal Court of Australia action NSD1802/2008). There are an epic number of applicants (aka plaintiffs):

Beverly Blvd Llc
Buena Vista Home Entertainment
Columbia Pictures Industries
Inc Disney Enterprises
Dream Works Films Llc
Gh One Llc
Gh Three Llc
Internationale Fileproduktion Richter Gmbh ; Co Kg
Internationale Filmprodukition Blackbird Vierte Gmbh ; Co Kg
Lonely Film Productions Gmbh ; Co Kg
Mdbf Zweite Filmgesellschaft Mbh ; Co Kg
Inc Nbc Studios
Paramount Home Entertaiment (Australasia) Pty Ltd
Paramount Pictures Corporation
Patalex Iii Productions Ltd
Ringerike Gmbh ; Co Kg
Roadshow Films Pty Ltd (Acn 100 746 870)
Seven Network (Operations) Ltd Acn 052 845 262
Sony Pictures Animation Inc
Sony Pictures Home Entertainment Pty Ltd Acn 002 489 554
Twentieth Century Fox Film Corporation
Twentieth Century Fox Home Entertainment Australia Pty Ltd Acn 076 486 470
Twentieth Century Fox Home Entertainment International Corporation
Twentieth Century Fox Home Entertainment Llc
Universal City Studio Procductions Lllp
Universal City Studios Lllp
Universal Pictures (Australia) Pty Ltd Acn 087 513 620
Universal Pictures International
Universal Studios International B.V
Village Roadshow Films (Bvi) Ltd
Warner Bros Entertainment Australia Pty Ltd Acn 003 773 411
Warner Bros International Television
Warner Bros. Entertainment Inc
Warner Home Video Pty Ltd

iiNet is all alone as the respondent. It’s interesting to note that the plaintiffs picked iiNet as their target, rather than (say) Telstra.

The matter is before Justice Cowdroy, who is by all accounts a scrupulously fair and even handed Judge. His Honour has an interesting history as a barrister (including “air and space law”), although it’s hard to glean much information about his personal political or intellectual leanings.  He has not delivered much in the way of judgments on copyright, other than one decision about toilet bowls.

I did find the following remarks (from his Honour’s speech upon his appointment to the NSW Land and Environment Court) interesting, and they might give some comfort to iiNet if his Honour ends up being the trial judge that he will not be taking a radically pro-property owner approach:

The environment belongs to us all. It is a recognition that has come to us as lawyers somewhat late in the day, yet the Indians recognised the beauty of the environment and its protection more than one hundred and fifty years ago. In 1854 the American President wrote to a Red Indian tribe offering to buy their lands. Their chief, Chief Seattle, responded. He was puzzled at the concept that someone could offer to buy the land and the environment which had been the ancestral home of the Red Indians. He responded in a statement which is regarded as the most beautiful and profound statement on the environment ever published. One statement in it reads:

How can you buy or sell the sky, the warmth of the land. The idea is strange to us If we do not own the freshness of the air and the sparkle of the water how can you buy them. This we know. The earth does not belong to man. Man belongs to the earth.

The applicants explain their claim thusly:

The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.

In other words, the complaint is that iiNet should have taken steps to stop its users from infringing copyright.  There is some recent authority for this type of claim, in particular Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187.  In that case an operator of a website which provided links to copyright material was held liable for copyright infringement.  That case, and this claim against iiNet, raise significant questions about the degree to which a service provider must be involved in copyright infringement in order to be taken to have “authorised” that infringement within the meaning of the Copyright Act.

For example, it might well be argued that iiNet permitting the use of bittorrent traffic at all amounts to ‘authorisation’ because it is aware that many people use bittorrent for copyright infringement.  In Universal Music v Moorehouse [1975] HCA 26, the High Court held that a university was liable in respect of copyright infringement committed by students using a photocopier located in a library.  Gibbs J said:

…a person who has under his control the means by which an infringement of copyright may be committed - such as a photocopying machine - and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use.

By analogy, it might be said that iiNet has provided the means by which an infringement of copyright may be committed (i.e. Internet access), made it available to other persons (its users), and knows or has a reason to suspect that it will be used for the purpose of committing infringements of copyright.  A great deal will therefore hinge on whether iiNet is found to have taken “reasonable steps” to limit the use of the service to legitimate purposes.  Another distinction which might be drawn by iiNet is that identified in Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10:

It follows that manufacture and sale of articles such as blank tapes or video recorders, which have lawful uses, do not constitute authorization of infringement of copyright, even if the manufacturer or vendor knows that there is a likelihood that the articles will be used for an infringing purpose such as home taping of sound recordings, so long as the manufacturer or vendor has no control over the purchaser’s use of the article [...] It was the absence of such control in C.B.S. Songs Ltd. that constituted the critical distinction between the decision in that case and the decision in University of New South Wales v. Moorhouse, where the University had power to control what was done by way of copying and not only failed to take steps to prevent infringement but provided potential infringers with both the copyright material and the use of the University’s machines by which copies of it could be made Accordingly, in Moorhouse, authorization was made out.

It can only be hoped that the Court takes a practical and realistic view of the nature of the Internet and bittorrent, and tends to the latter view of the nature of iiNet’s actions as a result.  The Copyright Act itself provides some assistance to iiNet.  For instance s 112E provides that:

A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio‑visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.

Section 101 of the Copyright Act will no doubt also be relevant, cryptically named “infringement by doing acts comprised in copyright”, as will the ’safe harbour’ provisions enacted fairly recently in respect of ISPs.

More fundamentally, this case highlights what I see as a critical problem with the current legal framework for dealing with copyright infringement: the Internet has made it trivially easy, and even people who are not in any sense tech-savvy can commit numerous, heinous breaches of the Copyright Act with a few mouse clicks.  So many ordinary people were downloading US television programs via bittorrent that we (finally) have broadcasts in Australia which are nearly up-to-date with their US counterparts.  Although this type of copyright infringement isn’t necessarily something to be completely ignored (depending on your point of view), there is a very great disparity between the magnitude of the conduct (click, click, minimise window), the harm created (possible arguable maybe hypothetically slightly dimished prospect of that person watching the same episode of that program when it is finally broadcast or buying the DVD), and the penalties which potentially apply (criminal conviction in some cases, and fines in the tens of thousands of dollars).

I will be following this case with interest and will provide updates in due course.