High Court downs Inaction as Authorization in iiNet case

High Court downs Inaction as Authorization in iiNet case

The High Court has released its judgment in Roadshow v iiNet.  In another clean sweep, the court found that iiNet was not authorizing certain infringements by users of its service.  The case was, effectively, whether knowledge could convert an innocent bystander into an infringer by authorization.  As I predicted in November last year, this outcome was not much of a surprise to me because the authorization argument was so self evidently bad.  I was frankly surprised that it got as much traction as it did before the Full Court.

It Just means More Legislative Kow-towing

Two years ago I said this:

So, what if the iiNet case makes it to the High Court and the argument is still downed?  Well, it seems like that won’t be the end of the matter.  Rather, the movie studios will simply be able to argue that they have exhausted common law avenues so a legislative response is now appropriate.

What is the first thing the movie studios have to say on the case?

AFACT managing director Neil Gane said the group would lobby for changes to copyright laws.

He said the ruling showed Australian legislation had failed to keep up with technological change, and the Government should follow the lead of countries such as the United States and overhaul laws to protect copyright online.

“The High Court has unanimously given a judgement that the only fix is a legislative fix,” Mr Gane said.

“It would seem apparent that the current Australian Copyright Act is incapable of protecting content once it hits the internet on peer-to-peer networks, and the recommendation of the High Court is for amended legislation.

How utterly predictable.  Despite the court making it clear that innocent third parties shouldn’t be holding the can for movie studios, the studios assert there is a problem and that someone else should have the costs of solving it. Of course, no one has proven there is a problem – we have had the web for 20 years and peer to peer for 15, but we still have far too much money being spent on the (over) production of movies (which is to say that movies created today lay far too much stress on “production values” and not enough on story, plot, etc).  We also have large numbers of movies being created.

Unfortunately, the Government has already been behind closed doors working on a new scheme to make innocent ISPs liable for their users’ infringements – remedying this non problem.  Sadly, with no representation whatsover from the 20 million Australian copyright holders that it will affect.  We can expect to see even greater invasions of our rights and privacy cemented into law in the coming years.

Some other notes:

Some comments:

  • there are two joint judgments, each reaching the same conclusion.  The first by French CJ, Crennan and Keifel JJ (paras 1-80), the second by Gummow and Hayne JJ (paras 81ff).
  • some reports mention this is about downloading – it isn’t.  The case was concerned with the authorization by iiNet of the “making available” by iiNet’s customers – eg iiNet authorizes, by its inaction, a customer when the customer puts a file into bittorrent’s share directory on the customer’s computer.  Seriously, that was the argument.
  • the court has (thankfully) said there’s more to “authorization” than just the dictionary meaning. Courts in Australia since Moorhouse have been slowly gliding towards using “countenance”  (out of “sanction, approve, countenance” as the touchstone for authorization.  That has been knocked on the head.  They also seem to be endorsing an approach which steers authorization back to its meaning.  There has been an approach which suggests that Moorhouse changed the meaning of “authorization” in Australia.  iiNet seems to be disendorsing that.
  • the court seems to be allowing back the meaning of authorization, being the granting or purported granting of a right (para 76)
  • the court hasn’t given much guidance on how s 101(1A) is to be approached.
  • the court (in my view) ought to have been more critical of some of the Federal Court decisions since Moorhouse.
  • the court has said that the power should be a direct one – eg to control the bittorrent software or to control the actions of the user, not an indirect one – eg to terminate the user’s account.
  • the court doesn’t draw enough attention to the fact that Adelaide Corporation dealt with permission not authorization.
  • Gummow and Hayne JJ rightly discuss the role of “the general rule of the common law that in the absence of a special relationship one person has no duty to control another person to prevent the doing of damage to a third.” (at 108 ff)
  • the court, unfortunately in my view, has still left open the possibility that power and inaction of itself can found an authorization.  While this is technically true (typically in the case of employer/employees) I don’t think it ought to have bearing in a case such as this one, because the relationship is wrong. Thus, the court suggests that, if the movie studios had provided “iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts” (at para 78) then iiNet’s inactivity might have resulted in an authorization.  I think this is just wrong, as iiNet’s customers have no knowledge of iiNet’s knowledge (it does not square with paragraph 76 of the judgment for example).  That said, given regard to the things that the judges thought might be reasonable it may be practically very difficult to provide such material.
  • At paragraph 118, the court comments on the recent expansion of the Copyright Act. See here for a graph.

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