08 April, 2013

Retrospective - Stop your downloading! The liability of ISPs in Australia

The advent of fast Internet connections and the abundance of copyrighted material on offer through various channels and consumer's taking full advantage of both in getting their media fix. Content is available through legitimate means, for example iTunes or other online distributors, or through streaming services such as Netflix. However the flip-side of the coin is thought to be darker; downloading of music illegally, the streaming of movies and TV, all presenting an issue in themselves. The question often raised by both rights holders and the legislature is; "who is responsible for all of this?!" At the core of it, the choice to illegally download material is one which the consumer (yes, you) makes, and supervision is purely on the legislature to ensure it stays on top of the alleged infringements. But what if responsibility is passed on, not to the person infringing, but the entity providing them the service? To understand the relationship between an infringer and an ISP (Internet Service Provider) when it comes to copyright, let me give you an analogy. Should the entity providing the roads where we drive on be responsible for the misuses of those roads (owned by a company in this example)? The roads would presumable be intended for all who follow the laws and rules related to driving on the road, yet there still are people who drive over the speed limit or under the influence of substances. Should the company providing the roads be liable for the drivers’ potential infringement of those rules? The issue of responsibility came up in the High Court of Australia in the Roadshow Films Pty Ltd & Others v iiNet Ltd case back in 2012.

"Can't see any infringements here, Dave"
Under the Copyright Act 1968 in Australia, section 101 sets out that an entity 'authorizing' an infringement of copyright would be liable in their own right, depending on a number of variables. The degree of control they have over the user in preventing their act; the nature of their relationship; and whether they took any action to stop or avoid the infringement by the user. Purely looking at the legislation you could imagine ISPs being in hot water. Due to ISPs controlling an individual's access to the Internet, you could imagine shutting down their illegal use of that service would be simple? Not so much. The sheer amount of subscribers makes monitoring the network usage a massive endeavor, and from the get-go, should ISPs even control what we do on the Internet? After all, that could be an infringement of their freedom of speech. No laws state any liability for ISPs currently, making their responsibility for our actions farfetched at best. Also with a lack of any guidelines adopted by all ISPs, the user could simply switch to another provider without any ramifications, avoiding his ban on his illegal use.

The High Court quickly dismissed iiNet's liability, due to the nature of their relationship with their subscribers. An ISP hardly can control the decisions its subscribers make, nor can they change or control the software which they use to attain or upload any infringing material. The Court also agreed with my earlier notion of the amount of subscribers, as overseeing thousands of users on a daily basis would be near impossible. One judge however did not see it the way the majority did (Justice Jagot) and stated in her opinion that iiNet's effectively approved the infringements of their users through their indifference. I for one cannot understand how her Honor could equate the relationship between an ISP and a single user of its network from thousands to effectively that of a parent ignoring its child's bad behavior. The High Court subsequently dismissed Roadshow Films' appeal.

Post-iiNet reaction from a network administrator
When wondering how the dynamic of an ISP and a user would have changed, if the High Court would have seen things much like Justice Jagot, the nature of the Internet could have been completely changed in Australia. Presuming ISPs would need to monitor and control all of their users’ traffic and web activities would have turned the Internet from a bastion of freedom of sharing, expression and connectivity, to an ultra-controlled authoritarian network, much like that in China where information is filtered and fully controlled. The freedom of the Internet is built on the ability to utilize it as one sees fit, and pay for any consequences that might come from their use. There have been talks about imposing further liability, yet with the European Union stepping back from such legislation, the Internet should remain the same, at least for now.

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