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In late February, the Full Bench of the Federal Court in Australia dismissed the movie industry’s appeal against last year’s judgment in the case of AFACT v. iiNet, which found that the ISP iiNet did not authorize the copyright infringements of its file-sharing customers, and while their users did indeed infringe, this was not the responsibility of the ISP. The court also found that the ISP had an anti-piracy policy in place, and that it was not responsible for anything done by its users on the BitTorrent network since it did not have control over the network. Thus, the ISP Safe Harbor provisions apply. The judge dismissed the case and as of last month, appeal was denied. As a result of this outcome, the court has set a precedent stating that ISPs are not responsible for what their users do with the services the ISPs provide them.
Several major Australian ISPs have subsequently liberalized their approach to piracy infringement warnings. For example, Exetel has revised their policy of blocking Internet access of users who receive infringement notices until the organization receives an acknowledgment that it was received. It now will now simply forward the infringement notice to the end user and not interfere with their connection. Additionally, Optus will no longer reprimand or penalize users who perform copyright infringement on their networks.
However, Australia’s Internet Industry Association (AIIA) feels that although some outline parameters have been set by the ruling, further detail is required for affected companies to effectively manage their responsibilities. In response to the decision, AIIA has developed a new Code of Practice and will renew its efforts to have the so-called ‘Safe Harbor’ provisions in the Copyright Act extended to cover not only ISPs, but other intermediaries.
However, the movie, music and other copyright-related industries are reacting as well. Both the ruling and the appeal have provided guidance on how these industries might proceed in the future to more forcefully back ISPs into a corner on subscriber infringements. The rest of the world is watching.
– Nicole Soussan
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