Two important Australian copyright cases: BitTorrent all you like, but don’t borrow a flute riff

It’s been a big week for Australian copyright law with two important cases decided.

First up we had the case of iiNet versus Roadshow Films. This case   saw mid-sized Australian ISP iiNet sued for by a federation of Hollywood movie studios and local broadcasters for copyright contraventions by its users, chiefly on BitTorrent. The case was always expected to have wide ramifications, as it called into question whether ISP’s would be responsible for the rampant illegal downloading of their users. The movie studios hired private detectives to track user downloads and then informed iiNet about the activity.

When iiNet refused to disconnect users, they sued, arguing thata iiNet had a legal obligation to stop users from illegal activity.  iiNet argued that it had no legal right under privacy law to snoop on what its users were doing,, and that in any case BitTorrent can be used for many legitimate activities.

iiNet won. In his judgment, Justice Cowdrey comprehensively demolished the Big Media case. “I find that iiNet did not authorise the infringements of copyright of the iiNet users,” he wrote, going on to point out that even if iiNet had done so, it would still “have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so.” Translation: not only did iiNet not authorise the illegal downloading, it also enjoyed the “safe harbour” protections of the Copyright Act like any other ISP or telco. It’s a comprehensive slap-down for the copyright lobby.

And then there was the plagiarism case concerning Men at Work’s famous 1981 song “Down Under.”

This is one of the most famous songs in Australian contemporary music, selling millions and reaching No.1 in both US and Australian charts. I  vividly remember hearing it played endlessly as a child when Australia won the America’s Cup yacht race in 1983, for which it had become a kind of de facto national anthem.

The case involved the publishers of a song entitled “Kookaburra Sits in an old Gum Tree”, a well-known children’s ditty penned for the Girl Guides in the 1930s b y a woman named Marion Sinclair. But afteer Ms Sinclair’s death, the song was bought by music publisher Larrikin Publishing, who then sued in 2007 after the similarity in the two songs was noted in an ABC music quiz show, Spicks and Specks.  In a canny piece of copyright trolling, Larrikin argued that the flute riff in “Down Under” included two bars of the melody of “Kookaburra”, and that Larrikin was therefore owed a substantial part of the publishing and songwriting royalties of the hit song.

Now songwriter Colin Hay and publisher EMI stand liable for millions in back-royalties.

In a statement yesterday, Hay slammed  the decision, stating that:

“It is indeed true, that Greg Ham, (not a writer of the song) unconsciously referenced two bars of ‘Kookaburra’ on the flute, during live shows after he joined the band in 1979, and it did end up in the Men at Work recording.”

“It may well be noted, that Marion Sinclair herself never made any claim that we had appropriated any part of her song ‘Kookaburra,’ and she wrote it, and was most definitely alive, when Men at Work’s version of ‘Down Under’ was a big hit. Apparently she didn’t notice either.”

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