Aussie ISP strikes landmark blow in copyright war

An Australian judge has ruled that ISP iiNet is not responsible for its customers breaking copyright laws.

Aussie ISP iiNet has won a landmark case over service providers' responsibilities when it comes to handling copyright-protected material.

The case kicked off in the Australian Federal Court in October, between internet service provider iiNet, and AFACT (the Australian Federation Against Copyright Theft).

AFACT accused iiNet of authorising 'torrent' downloads by not acting on known copyright infringements by its subscribers.

In what is likely to represent a blow to attempts to crack down on copyright infringing downloads, Judge Cowdroy has ruled that iiNet are not guilty.

In 2008 AFACT, the Australian cousins of NZFACT, accused iiNet of condoning copyright infringement, accusing them of ignoring requests to discipline subscribers for breaking copyright laws.

iiNet in turn replied, saying that said that they couldn't disconnect a customer based on mere allegation, and that any alleged offences would need to be proven in court.

Bringing a large dose of common sense into the equation, Judge Cowdroy stated that iiNet has no control over BitTorrent and cannot be held responsible for the actions of its subscribers.

"I find that iiNet simply can't be seen as approving infringement" he said, adding that "the mere provision of access to internet is not the means to infringement".

Whilst AFACT has been ordered to pay iiNets court costs, the organisation has already indicated it is unlikely to take the ruling lying down, and will seek a high court appeal on the ruling.

The case has also been followed closely by the Australian Government, with Broadband and Communications Minister, Senator Stephen Conroy, stating that he'd be looking to bring new copyright legislation into play depending on how the court ruling played out.

Copyright laws in Australia and New Zealand are relatively similar, and as such, this case may have implications on the final shape of Section 92a.

Because the company used by AFACT, DtecNet, to gather evidence (e.g. the IP addresses of alleged copyright infringers) against iiNet is the same company as is used by NZFACT in New Zealand, iiNet's arguments around the veracity of infringement accusations could also be called into question locally.

This would likely weaken any potential case bought to court by NZFACT. The viability of this as a legal avenue for ISPs will largely depend on the detail contained inside judge Cowdroy's ruling.

Given iiNet has already indicated that they spent over AUS$4m fighting this legal batter (and that it is fair to assume that AFACT has probably spent a similarly large amount) the odds of similar cases being fought locally and on a regular basis are likely to be small.

Either way, the fact that the ruling effectively rejects the logic underpinning the three strikes argument - that as ISPs make money out of the internet traffic over their networks, they should therefore have a responsibility to police the internet.

Judge Cowdroy's ruling effectively declares ISPs a neutral party, potentially giving ISPs scope to argue that they should not be internet gatekeepers, or enforcing copyright legislation.

Although Pat Pilcher is employed by Telecom New Zealand, his views are not necessarily those of his employer