iiTrial: Court mulls 'partially effective' ISP warnings

 

iiNet, APRA have their day in High Court.

The Australasian Performing Rights Association (APRA) has added weight to the proposition that passing on copyright infringement notices is only a "partially effective" means of an ISP avoiding accusations of authorisation.

The association made an amicus curiae appearance before the High Court of Australia on the second day of an appeal in the case between the Australian Federation Against Copyright Theft (AFACT) and ISP iiNet.

APRA's lead barrister, Mark Leeming SC, argued that any "partially effective" step available to an ISP – such as passing on warning letters from content owners – would be seen as relevant in avoiding a charge of authorisation under current legislation.

AFACT argued yesterday that passing on notices might not be enough to avoid legal action.

Several judges also yesterday questioned the effect of attempts to curb copyright infringement through warning notices.

APRA's appearance followed opening statements from AFACT's barrister Tony Bannon SC, who reiterated the importance of the DtecNet evidence provided in the Federal Court hearings as proof of copyright infringement by iiNet users.

DtecNet used anti-piracy software to collate a dossier of evidence of alleged copyright infringement occurring on iiNet's network.

Bannon also raised arguments from previous Federal Court proceedings that copyright infringements occurred every time a user logged in to the internet, because unauthorised movie files would be "made available" to other BitTorrent users.

iiNet's failure to respond to the warnings of content owners implied the ISP was authorising future repeat infringements, he said.

iiNet questions Safe Harbour

The second day of proceedings also provided the first opportunity in the High Court for iiNet to present its case.

iiNet's lead barrister Richard Cobden SC argued that the ISP had not authorised infringements under the Copyright Act.

AFACT's appeal, he said, relied on an incorrect view of the law.

Cobden used his opening statement to question the Safe Harbour provisions in the Copyright Act and their relationship with the doctrine of authorisation in section 101(1).

He argued that the Safe Harbour provisions were "pre-fabricated" from the Australian-US Free Trade Agreement and did not affect the interpretation of the authorisation provision.

The Safe Harbour provisions are also under review by the Attorney-General's Department.

If Cobden's view is accepted, steps taken under the Safe Harbour provisions, such as termination of repeat infringers, are distinct from the reasonable steps required to avoid a charge of authorisation. The two provisions served different purposes, he argued.

Authorisation under s101(1) of the Act concerned the liability of an ISP, whereas the Safe Harbour provisions were concerned with limiting the relief a court may grant against an ISP that has been found to have infringed copyrights.

This, he said, meant that AFACT's insistence that iiNet implement a policy potentially leading to disconnection of repeat infringers was not relevant to the question of reasonable steps.

Instead, Cobden argued, the Court should decide whether authorisation had occurred in the first place pursuant to s101(1), without reference to the Safe Harbour.

Further, Cobden urged the Court to give a stronger reading of the apparent protection for s112E of the Act, which provides for protection against a charge of authorisation for ISPs "merely because" they provide facilities that can be used to infringe.

Previous cases had read this provision as offering no real protection to ISPs. But iiNet hoped that if its broader interpretation were adopted by the Court, that its apparent lack of action would be seen as part of its operation as a communications facilitator and not amounting to authorisation of infringement.

Copyright © iTnews.com.au . All rights reserved.


iiTrial: Court mulls 'partially effective' ISP warnings
 
 
 
Top Stories
Frugality as a service: the Amazon story
Behind the scenes, Amazon Web Services is one lean machine.
 
Negotiating with the cloud email megavendors
[Blog post] Lessons from Woolworths’ mammoth migration.
 
Qld govt to move up to 149k staff onto Office 365
Australia's largest deployment, outside of the universities.
 
 
Sign up to receive iTnews email bulletins
   FOLLOW US...

Latest VideosSee all videos »

The great data centre opportunity on Australia's doorstep
The great data centre opportunity on Australia's doorstep
Scott Noteboom, CEO of LitBit speaking at The Australian Data Centre Strategy Summit 2014 in the Gold Coast, Queensland, Australia. http://bit.ly/1qpxVfV Scott Noteboom is a data centre engineer who led builds for Apple and Yahoo in the earliest days of the cloud, and who now eyes Asia as the next big opportunity. Read more: http://www.itnews.com.au/News/372482,how-do-we-serve-three-billion-new-internet-users.aspx#ixzz2yNLmMG5C
Interview: Karl Maftoum, CIO, ACMA
Interview: Karl Maftoum, CIO, ACMA
To COTS or not to COTS? iTnews asks Karl Maftoum, CIO of the ACMA, at the CIO Strategy Summit.
Susan Sly: What is the Role of the CIO?
Susan Sly: What is the Role of the CIO?
AEMO chief information officer Susan Sly calls for more collaboration among Australia's technology leaders at the CIO Strategy Summit.
Meet the 2014 Finance CIO of the Year
Meet the 2014 Finance CIO of the Year
Credit Union Australia's David Gee awarded Finance CIO of the Year at the iTnews Benchmark Awards.
Meet the 2014 Retail CIO of the Year
Meet the 2014 Retail CIO of the Year
Damon Rees named Retail CIO of the Year at the iTnews Benchmark Awards for his work at Woolworths.
Robyn Elliott named the 2014 Utilities CIO of the Year
Robyn Elliott named the 2014 Utilities CIO of the Year
Acting Foxtel CIO David Marks accepts an iTnews Benchmark Award on behalf of Robyn Elliott.
Meet the 2014 Industrial CIO of the Year
Meet the 2014 Industrial CIO of the Year
Sanjay Mehta named Industrial CIO of the Year at the iTnews Benchmark Awards for his work at ConocoPhillips.
Meet the 2014 Healthcare CIO of the Year
Meet the 2014 Healthcare CIO of the Year
Greg Wells named Healthcare CIO of the Year at the iTnews Benchmark Awards for his work at NSW Health.
Meet the 2014 Education CIO of the Year
Meet the 2014 Education CIO of the Year
William Confalonieri named Healthcare CIO of the Year at the iTnews Benchmark Awards for his work at Deakin University.
Meet the 2014 Government CIO of the Year
Meet the 2014 Government CIO of the Year
David Johnson named Government CIO of the Year at the iTnews Benchmark Awards for his work at the Queensland Police Service.
Q and A: Coalition Broadband Policy
Q and A: Coalition Broadband Policy
Malcolm Turnbull and Tony Abbott discuss the Coalition's broadband policy with the press.
AFP scalps hacker 'leader' inside Australia's IT ranks.
AFP scalps hacker 'leader' inside Australia's IT ranks.
The Australian Federal Police have arrested a Sydney-based IT security professional for hacking a government website.
NBN Petition Delivered To Turnbull's Office
NBN Petition Delivered To Turnbull's Office
UTS CIO: IT teams of the future
UTS CIO: IT teams of the future
UTS CIO Chrissy Burns talks data.
New UTS Building: the IT within
New UTS Building: the IT within
The IT behind tomorrow's universities.
iTnews' NBN Panel
iTnews' NBN Panel
Is your enterprise NBN-ready?
Introducing iTnews Labs
Introducing iTnews Labs
See a timelapse of the iTnews labs being unboxed, set up and switched on! iTnews will produce independent testing of the latest enterprise software to hit the market after installing a purpose-built test lab in Sydney. Watch the installation of two DL380p servers, two HP StoreVirtual 4330 storage arrays and two HP ProCurve 2920 switches.
The True Cost of BYOD
The True Cost of BYOD
iTnews' Brett Winterford gives attendees of the first 'Touch Tomorrow' event in Brisbane a brief look at his research into enterprise mobility. What are the use cases and how can they be quantified? What price should you expect to pay for securing mobile access to corporate applications? What's coming around the corner?
Ghost clouds
Ghost clouds
ACMA chair Chris Chapman says there is uncertainty over whether certain classes of cloud service providers are caught by regulations.
Was the Snowden leak inevitable?
Was the Snowden leak inevitable?
Privacy experts David Vaile (UNSW Cyberspace Law and Policy Centre) and Craig Scroggie (CEO, NextDC) claim they were not surprised by the Snowden leaks about the NSA's PRISM program.
Latest articles on BIT Latest Articles from BIT
Preview of new PowerPoint tool Office Mix announced
Apr 23, 2014
PowerPoint users might be interested in some new developments coming up that might change the ...
Another phone with Telstra's Blue Tick: The Samsung Galaxy S5
Apr 8, 2014
Samsung's latest flagship phone joins Telstra's list of recommended handsets for customers in ...
Run an online shop? This might be worth bookmarking
Mar 28, 2014
Things like Australian safety standards are probably the last thing on your mind, but just ...
Vodafone switches on 4G in Tasmania: list of locations
Mar 28, 2014
See a list of locations in Tasmania that now have access to 4G via Vodafone's network.
Samsung Galaxy S5 on sale from Telstra next month for $912
Mar 27, 2014
It's not cheap, but if you are looking to upgrade your phone then the Samsung Galaxy S5 could be ...
Latest Comments
Polls
Which bank is most likely to suffer an RBS-style meltdown?





   |   View results
ANZ
  20%
 
Bankwest
  9%
 
CommBank
  11%
 
National Australia Bank
  17%
 
Suncorp
  24%
 
Westpac
  19%
TOTAL VOTES: 1498

Vote