Well the iiTrial result is a smashing win for the ISP and is the result that everyone hoped for. Even the most hopeful observers thought that the most likely outcome would be dilluted in some way (i.e. the ‘reasonable steps’ would be for ISP to pass the notices on). A complete and annhilating defeat for the studios is the icing on the cake. The facts of the decision are available here, here and here.

So, what does this mean for Australian bittorrenters?

Well, for once it means a giant step back for the studios. As RIAA has discovered, filing individual lawsuits agaist filesharers is pretty bad PR. Such bad PR, that they, in fact, tried to spin that they no loger sue the individuals, which of course is bogus. All in all, the content rights holders are discovering that suing individuals got them nowhere.

So, in order to eradicate the “problem of file sharing” the studios see a number of options available to them (apart from the obvious - i.e. providing product people want to pay money for), in order of increasing perceived effectiveness:

  1. Suing individuals.
  2. Send out notices to the ISP alerting them that infringement has occured an hope to scare some people off file sharing.
  3. Making ISPs responsible for copyright infringement.

So, going after individuals is ineffective and expensive. The holly grail of Big Content is number 3 though. They would love to make ISPs culpable for illegal file sharing. That’s what all the three strikes laws attempts are about. If the studios can make ISPs liable for user infringement, they hope that ISPs will police their networks, maybe even to the point of disabling BitTorrent. So far getting ISPs to kick users off the network required legislative support worldwide (i.e. France and Korea) as it is clearly in violation of safe harbour provisions.

AFACT decided to approach this from a different angle and set a precedent that it’s reasonable to kick off alleged infringers for repeated offences. They went after the easiest target - the big ISP that publicly stated that they do not send infringement notices to users. iiNet council even argued that AFACT manufactured authorisation by sending out notices to the ISP that they knew were not going to be acted upon in preparation for this very court case.

Going back to why this is a step back for AFACT. Now that iiNet is in the clear it is obvious that ISPs are under no obligation to pass infringement notices on. They might have been a scare tactic that somewhat worked (maybe on 10% of the people who received them). Now the studios don’t even have that. It was an all in game for the studios and they lost.

Of course AFACT will appeal, but they have lost a lot of momentum. Months, if not years worth of momentum. My prediction is that they will make a token effort in appealing and instead concentrate on lobbying for three strikes law.

So the next big thing in copyright in Australia is ACTA. DFAT has publicly come out and said that Australia is not going to implement three strikes laws. I, however, do not trust them. Politicians and lobbyists involved in ACTA around the world have notoroiously been blowing smoke about it. I would take anything that anyone involved in a secret treaty negotiation with a grain of salt.

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04 February 2010