Carriers move to shore up safe harbour

Industry body seeks amicus curiae status in AFACT vs. iiNet

Australia’s peak carrier and service provider body, the Communications Alliance, is seeking “friend of the court” (amicus curiae) status in the “iiTrial” High Court appeal.

The Hollywood catspaw is appealing to Australia’s top court to overturn decisions further down the legal food chain, which gave iiNet immunity against its customers’ use of BitTorrent. A cabal of film and distribution studios had lined up as plaintiffs, claiming that iiNet “authorized” copyright infringement through its failure to prevent the use of BitTorrent to copy movies.

With one judge in that case expressing the belief that iiNet could have taken action against customers but did not, Hollywood believes it could get the prior decisions overturned, and that has carriers and ISPs worried that a win in the High Court could undermine the “safe harbour” provisions they’re granted under Australian law.

“There would be a very significant negative impact on the interests and businesses of ISPs if the appellants succeed in the contention … that ISPs are liable for authorizing infringement of copyright by their users unless they implement and operate at their own cost a system for dealing with allegations”, the filing says.

The Alliance notes that “the usual relationship between ISPs and their customers … does not relate to, and is not characterized by, the infringing copyright material.” ISPs are contracted to deliver packets just as postmen are obliged to deliver letters – without having to justify the contents of what they deliver.

The Alliance also believes that AFACT is asking for too wide a definition of an ISP’s power to prevent infringement, noting that “an electricity supplier would have a relevant power to prevent infringement by disconnecting the infringer from the mains” if the appeal were to succeed.

The group also takes a strong position against service disconnection as a punishment, saying that this would affect their access to emergency services in some cases (for example, among the growing number of customers buying Naked DSL services with no underlying PSTN connection), would constrain normal social and business activities of customers, and would probably fail because a customer would simply open an account with a new ISP.

The submission can be found here. The full list of submissions is here.

Other groups filing in support of iiNet include the Australian Digital Alliance and the Australian Privacy Foudation. Lining up behind AFACT are the Australian Performing Rights Association, the Australian Recording Industry Association, and a joint filing by the Media Entertainment and Arts Alliance and the American Screen Actors’ Guild.

This last is perhaps unfortunate. While the MEAA represents actors, it is also the journalists’ union in Australia, and apparently it sees no conflict of interest introduced by its attempted intervention in the case. Whether or not the MEAA even perceives such a conflict, The Register notes that the union fails to mention its representation of journalists in its application. ®