Hollywood versus iiNet: safe harbours or choppy seas?

Raena Lea-Shannon has an excellent story today in NewMatilda.com about the current lawsuit by a consortium of film and TV distributors against Australian ISP iiNet.

Running through the fascinating history of the case law (which includes a suit by Australian author Frank Moorhouse and the infamous Sharman KaZaa case), Lea-Shannon demonstrates that the safe-harbour provisions written into the Copyright Amendment (Digital Agenda) Act 2000 won’t necessarily protect iiNet, particularly if it can be shown to have dragged its feet in allowing users to torrent pirated files:

What is therefore going to be of crucial importance to the decision in the iiNET case will be whether the court finds that iiNET has done something more than being a mere messenger.

The “something more” that the Federal Court is being asked by the plaintiffs to consider, include that iiNET: took no action in response to notifications sent on behalf of the applicants; offered encouragement to iiNET users to engage in, or continue to engage in, infringement of the plaintiffs’ copyright; failed to enforce terms and conditions prohibiting use of iiNET services to infringe copyright; continued to offer iiNET services to customers who were infringing the plaintiffs’ copyright; and, through its own inactivity and indifference, permitted a situation to develop and continue where iiNET users engaged in or continued infringe the plaintiffs’ copyright.

Internet service providers have argued that they are subject to obligations to their subscribers under the Telecommunications Act and Privacy Act. Giving away information about subscribers can be an offence and in breach of their own terms of service with subscribers. How, if at all, will the court take that into consideration? Is it possible for the parties to settle the matter and come up with a code of conduct that works?

The outcome of this case will define the relationship under Australian law between ISPs and the film, television and music industries for quite some time and that relationship will determine how Australians will entertain themselves well into the future. Watch this space.

I will indeed be watching.

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