ECJ, Australian rulings show differing views on copyright
Courts let ISPs off the hook as focus shifts to users
TechLife | 20 Apr 2012 :
Two decisions in foreign courts this week could point the way to how Ireland's copyright laws may be reformed. The European Court of Justice, which recently ruled against content filtering as a strategy against piracy, found that Swedish law has no provision to allow Internet service providers to withold customer details in cases of suspected copyright infringement.
The ECJ ruling now puts Swedish ISP ePhone under pressure to disclose information about their customers as book publishers try to identify individuals suspected of sharing material illegally. Previously rightsholders had to petition the courts to make a case for IP addresses to be released to them, now a situation could arise where addresses could be released on-demand with little justification.
While neither of these rulings have a direct effect on how Irish law will be amended to handle copyright infringement they do say something about the role of service providers in identifying and censuring users who willingly share material without consent of the rightsholder.
As per the Digital Millennium Copyright Act in the US, both these decisions allow ISPs to claim a 'safe harbour' defence meaning they cannot be held accountable for the actions of users across their networks. However, while ISPs in Australis can now avoid censure, their European counterparts may have to work with rightsholders in rooting out rogue elements and handing over IP addresses with minimal evidence.
Right now in Ireland rightsholders have to take action against copyright infringement on a case-by-case basis, taking out injunctions against individuals with no promise that the Courts will uphold their claim. This is before factoring in the cost of hiring a third party to identify suspect IP addresses.
In Ireland rightsholder bodies like IRMA can provide ISPs with a list of infringing customers' IP addresses (sometimes compiled by a third party). In the case of eircom a 'three-strikes' rule could see service suspended but no other ISP in Ireland has adopted similar measures. If, say, a UPC or Magnet customer's IP address was identified it would require an order of discovery made through the Courts to have them identified before any further action could be taken.
If a streamlined process (as the Swedish case would point to) were to remove barriers to identifying customer IP addresses it could lead the way to a situation where legal sanction becomes cheap enough to pursue on a larger scale than is currently financially viable.
So the middleman gets off the hook the individual has to start over his/her back.
Meanwhile in Australia, a long-running lawsuit against the country's second-largest ISP has ended in a defeat for the entertainment industry, which sought to hold the ISP liable for copyright infringement on its network.
IiNet, was being sued by 34 entertainment companies, including Paramount Pictures, Warner Bros. and Disney, for allegedly failing to stop peer-to-peer file sharing of their copyright material.
Australia's High Court found that even though iiNet's customers could engage in illegal file sharing, the ISP itself did not "authorise" any copyright infringement. The High Court's decision is final, meaning the entertainment industry can't appeal.
The entertainment industry wanted iiNet to send its customers a warning to delete infringing content made available on BitTorrent, and if the file was still online after a week, to cut off the customer's Internet connection.
Anne Flahvin, media and communications counsel for Policy Australia, a legal and policy consultancy, said the ruling now sets "a very high bar" for copyright owners to meet in order to spur ISPs into anti-piracy actions, even more than three-strikes laws in other jurisdictions. "I think the main battlefront will also shift now to political pressure on the government," Flahvin said.
IDG News Service