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Expert comment on iiNet decision
ISPs will be breathing a sigh of relief at the decision of Justice Cowdroy in the
Federal Court today that iiNet did not “authorise” copyright breach by its account
holders engaged in unlawful filesharing, according to RMIT University’s General
Counsel, John Lambrick.
The decision also found that iiNet was protected by the “safe harbour” provisions of
the Australian Copyright Act, which can prevent ISPs from being liable for
damages.
On the other hand, the decision would do nothing to stem the flow of unauthorised
filesharing across the internet, Mr Lambrick said. By some estimates, 50 to 80 per
cent of broadband traffic involves the unlawful transmission of copyright protected
content.
“Regardless of the legal reasoning behind the judgement, on balance the outcome
was appropriate on a policy basis. A decision in favour of the Australian Federation
Against Copyright Theft (AFACT) would have created very significant compliance
costs for the ISP industry, with ISPs required to take an unaccustomed policing
role in respect of the activities of their account holders,” Mr Lambrick said.
“Worse still, a decision against iiNet may have caused panic amongst some ISPs,
resulting in termination of accounts upon demand by content owners, sometimes
without justification.
“While AFACT is likely to appeal the decision all the way to the High Court, it is
likely that the Federal Government will intervene to legislate a solution. Any such
solution should facilitate downloader accountability, but at the same time protect
ISPs and other service providers from liability.
“Such solutions may include a minimalist approach, whereby ISPs are simply
required to pass on details of account holders to content owners claiming a breach,
or the establishment of a regulatory body to oversee complaints lodged by content
owners.
“The decision will create worldwide interest in light of similar ‘safe harbour’
provisions which operate in the USA and Europe.”
Mr Lambrick is available for comment on this issue.
For interviews: RMIT University’s General Counsel, John Lambrick, (03) 9925
3522 or 0418 310 813.
For general media enquiries: RMIT University Communications, David Glanz,
(03) 9925 2807 or 0438 547 723.
4 February, 2010
NEWS 
