Internet liberty at stake: Fanny’s not for burning

A copyright action by seven copyright holders against Australia’s No. 3 ISP, iiNet (we are not talking a multi-national ISP with unlimited bank facilities here) will be the first real test of the ‘safe harbor’ provisions in the copyright laws.

This seems like a very small storm in a large sea. It is much, much more than that.

These were inherited by Australia  from the United States when it signed a free-trade agreement. Thus the judgments can, and most certainly will, be quoted in American courts. It is a very sneaky action which is the sort of thing lawyers are brought up to see as moral crusades.

The Australian Federation Against Copyright Theft — on behalf of seven film companies and their affiliates and licensees — brought the action against iiNet in November.

The law moves slowly its wonders to perform so it has just got to the Federal Court and you will not see a pitched battle until a two-week hearing, set down for Oct. 5.

Lining up to kick the small kid on the block — iiNet — will be entertainment industry heavyweights Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Disney Enterprises, Seven Network and Twentieth Century Fox, owned by News Corp which is Rupert Murdoch, a person who loves a fight.

So why to these monsters pick on on iiNet when it could havee gone for the Australian biggies in this area which are Telstra and Optus which could have defended themselves?

And the answer is Telstra and Optus have the big bikkies to pay the lawyers. iiNet does not.

(This is not a new legal ploy. In England, after being hammered by Penguin the law looked around for an impecunious transgressor and sued Fanny Hill. And won. Money does make the difference. The author knows. He was the defendant.)

This will be a major and complex battle with far-reaching results and it will almost certain to go to appeal, no matter what happens in October.

To understand ‘safe harbor’ you need to accept that the law means what the lawyers manage to make it appear to mean at any given moment.

One way of putting it is the ISP is not responsible for piracy or illegal content which its clients pass around. Lawyers for iiNet claim bringing this action against an ISP is ‘like suing the electricity company for things people do with their electricity’.

This is naive and will not stand in court. The new law could be interpreted as saying that an ISP must take action against subscribers if either ‘official’ (ie, a court or regulator) or ‘unofficial’ (AFACTS, for instance) draws their attention to a claimed breach.

But, at least in theory, ISPs can say any subscriber cut off for alleged copyright breaches may claim to be falsely accused. The subscriber may be a school, library, a corporate or university network or Internet café and have scores of users. Again, that is an elegant argument but not one that is likely to fly.

There is a sort of precedent which many come into play.

New Zealand’s new copyright laws (New Zealand, despite the persistent belief of many, is not part of Australia and has its own laws and was, incidentally, the first country to give women the vote) will come into force on February 28. Section 92A says an ISP must ‘implement a policy that provides for termination, in appropriate circumstances, of the account of a repeat infringer’.

Lawyers love this sort of loose wording. What do ‘appropriate circumstances’ mean? What is a repeat infringer? Or what happens when an Internet account is used by a family, a business or a school?

Judging by the American experience the movie industry will inflict their own penalty. To fight them will, financially, almost be impossible.

In one sense, the future of the Internet will be on trial in October. Let us pray the big money loses. Otherwise the Internet will be cramped in a straitjacket from which it will never escape.

And do not think they have not tried in the United States. Go to http://tech.blorge.com/Structure:%20/2008/08/28/judge-maintains-safe-harbor-for-veoh-in-video-copyright-case/ and read that saga. Read it and be afraid. Very afraid.

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