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Piracy ruling blow to film industry giants

Date

Ben Grubb, Asher Moses

The federal government is under pressure to change copyright law after a damaging blow was dealt to the giants of the film industry in the High Court yesterday in a landmark internet piracy ruling.

The High Court's five judges unanimously dismissed the film studios' appeal in their case against iiNet and awarded the internet service provider costs. The studios had argued that by not acting to prevent illegal file sharing on its customer network iiNet was ''authorising'' the activity and was therefore liable.

But in a summary of the judgment, the High Court observed iiNet ''had no direct technical power'' to prevent its customers from downloading movies and TV shows illegally using BitTorrent, an online file-sharing protocol .

The court said iiNet's power to prevent customers illegally downloading ''was limited to an indirect power to terminate its contractual relationship with its customers''.

Further, it said infringement notices sent by the studios to iiNet did not provide the ISP ''with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers''.

The Australian Federation Against Copyright Theft (AFACT) is ramping up pressure on the government to act. It said yesterday's judgment exposed the failure of copyright law to keep pace with the online environment.

''It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks . . '' AFACT managing director Neil Gane said.

''Now that we have taken this issue to the highest court in the land, it is time for government to act.''

Kim Heitman, secretary of the online users lobby group Electronic Frontiers Australia, said no changes to copyright law were needed as the film studios could use a court order to go directly after users.

''End users are still capable of being prosecuted like they [have been] in the United States,'' he said.

''[The studios] have the ability to do this as long as they are being genuine about it.''

Recently, content owners and ISPs have been back at the negotiating table over illegal downloading.jl However, it is understood that a consensus has yet to be reached. Communications Minister Stephen Conroy has previously said that he was awaiting the outcome of the case before deciding whether new legislation was needed.

A spokeswoman for Attorney-General Nicola Roxon said the government would examine the judgment closely.

''Industry stakeholders have been meeting regularly during the last year to develop a code of conduct to address the issue of illegal downloading,'' she said.

''The Attorney-General's Department will continue to facilitate these discussions and we hope that industry will continue to work together to find a range of solutions to illegal downloading.''

iiNet CEO Michael Malone welcomed the ruling and said that Hollywood should now focus on increasing the availability of lawful content in a timely and affordable manner.

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