Hollywood v the Internets

Australian copyright law has a new landmark decision as of this morning, with Justice Cowdroy of the Federal Court of Australia handing down his decision in the Roadshow Films v iiNet Limited case, in which the misleadingly-named Australian Federation Against Copyright Theft (AFACT) sued iiNet, Australia's third-largest ISP, alleging copyright infringement. The case is significant in several ways both for ISPs and for operators of Internet services in Australia.

AFACT is a consortium of Hollywood movie studios who alleged that iiNet customers infringed copyrights owned by them in certain films by distributing copies via the BitTorrent file sharing protocol, and that iiNet itself had infringed by authorising its customers' infringements. AFACT had engaged an anti-piracy software firm to track the transmission of films over BitTorrent by IP addresses allocated to iiNet, and had then sent notices to iiNet warning them of the infringements and requesting that the ISP take action against the customers concerned. iiNet argued that it had not authorised any infringements. It also argued that privacy provisions in telecommunications legislation prevented it from acting upon any notices sent to it, and alternatively that it was protected from litigation by safe harbour provisions in copyright legislation.

Cowdroy J today held that while iiNet customers had infringed copyrights owned by AFACT members, iiNet had not authorised these infringements, for three reasons:

1. that one can distinguish "the provision of the 'means' of infringement compared to the provision of a precondition to infringement";
   
2. that any scheme for acting on AFACT notices would not constitute a relevant power or a reasonable step available to prevent infringement (within the meaning of s 101(1A) of the Copyright Act, which sets out factors that must be considered in assessing authorisation); and
   
3. that iiNet did not sanction or approve of copyright infringement by its customers.
   

Cowdroy J held that the means of infringement in this situation was the BitTorrent system (the protocol, trackers and clients) and not iiNet's network, thus distinguishing classic authorisation cases such as University of New South Wales v Moorhouse (involving a university library that provided photocopiers for the use of library patrons) as well as more recent Internet-centric cases such as Universal Music v Sharman Licence Holdings (in which Sharman was found to have authorised infringements via its Kazaa file-sharing software, with which Sharman both refrained from preventing infringement and actively encouraged infringement).

Distinguishing in this way the ultimate means from mere preconditions injects some clarity into the test for authorisation, which has largely revolved around degrees of control and of encouragement (Cowdroy J's second and third reasons mentioned above go to this classic test). This approach was obviously advantageous for iiNet. However, for operators of services such as wikis and social-networking sites, this approach would seem to render it more likely that they would be found to be authorising any copyright infringements by users, by providing the means of infringement such as a file upload facility or the ability to edit pages.

Without authorisation AFACT's case thus failed, however Cowdroy J went on to consider iiNet's other arguments in its defence anyway, in the event of an appeal (which would seem highly likely). He held that iiNet would not have been protected by s 112E of the Copyright Act, which protects telecommunications providers from being held to authorise infringement merely through providing the telecommunications service used to carry out the infringement. However, he found that iiNet would have been protected by the safe harbour provisions in the Copyright Act (s 116AA ff) because it had a "reasonably implemented" policy for dealing with repeat infringers.

These safe harbour provisions were based on the United States' OCILLA safe harbour provisions, although while the American provisions extend to "online service providers" (including website operators) the Australian ones are limited to "carriage service providers", that is, ISPs themselves. To my knowledge this is the first case to seriously address these provisions, and Cowdroy J notably utilised American OCILLA jurisprudence in doing so. Thus it seems that the safe harbour provisions will provide reasonably strong protections for ISPs, although with the current form of the legislation, this is of little comfort to online service providers.

The decision is significant in the context of Australian copyright law, and will be a boon for ISPs operating in Australia. However, for online service providers (such as operators of wikis), the substance of the decision will only serve to underline their precarious legal position in Australia, as opposed to their American counterparts, when it comes to copyright infringement by users of their services. They are not protected by safe harbours, and a "means"-based test for authorisation may well be worse than the more traditional control/encouragement test, if indeed it replaces it (it may merely augment it).

The silver lining however may be in Cowdroy J's rhetoric. His discussions of AFACT's nature and objectives, of its arguments and trial conduct, and of its attempt essentially to foist upon iiNet a positive obligation to protect its members' copyright interests, are enlightening. Robert Corr extracts some choice quotes here. Following last year's even more significant landmark decision by the High Court of Australia in the epic IceTV case, there would seem to be a healthy desire, in certain quarters of the legal community, to reevaluate some of the more extremist trajectories in Australian copyright law.

What happens to unreferenced BLPs?

Those of us who live other than under rocks will no doubt be aware of the latest controversy over Wikipedia's approach to biographies of living persons articles (BLPs), concerning the deletion last week of a large number of BLPs that had been tagged as being unsourced, and had not been edited for more than six months. The deletions sparked a giant administrators' noticeboard discussion, a request for arbitration and now a request for comments on how to proceed from here.

At the crux of the dispute is how seriously the project is to take the modified standards that it has adopted with respect to biographies of living persons.

Debates of this sort are usually run along inclusionist/deletionist lines, but really the more important philosophical dichotomy when it comes to BLPs is between eventualists and immediatists. Wikipedia on the whole favours an eventualist perspective - facilitated by the almost immeasurably large potential pool of labour out there - but the BLP policy is essentially a localised switch to immediatism: unsourced material needs to be sourced post-haste, or else removed.

Conceptually it's an elegant and attractive approach. But a major flaw with it is our attraction to eventualism. We just can't shake it off.

This category, and its many subcategories, tracks BLP articles that have been tagged as not having any sources. At the time of writing there are over 47,000 of them, some having been tagged as long ago as December 2006. Evidently any sense of urgency has passed those by. The backlogs mount until they approach the point where individual editors have difficulty comprehending the problem, let along working to address it. Frustration builds at the inevitable inertia, until something radical happens, like these mass deletions.

Is this view accurate? Is the problem of unsourced BLPs really out of hand? We can try to answer these questions by looking at the way the backlog has been managed.

Unfortunately, the data available for this purpose is somewhat limited. Database dumps older than the 20 September 2009 dump are currently not available due to maintenance. However that September dump, along with dumps from 28 November 2009 and 16 January this year (shortly before the deletions started), do offer three data points with which to commence.

The monthly subcategories from October 2006 to August 2009 inclusive were common to all three dumps. The total number of articles in these categories declined from 50,715 in September to 43,655 earlier this month, a 13.9% fall. However, over the same period, the total in all subcategories through December 2009 rose from 50,715 to 51,301, a 1.2% increase. At least over this period, new additions outweighed articles being removed from these categories.

It should be noted that some of these additions are due to articles that had been tagged, but were unsorted, being added into the monthly subcategories. In fact, ten of the thirty-five subcategories common to all three dumps saw increases in numbers since September. The following graph shows the change in the monthly category totals over the roughly four months between the September and January dumps:


Without analysing the actual changes in the lists of articles in these subcategories it won't be possible to tell whether the sorting process is merely outweighing the normal reductions through articles being referenced or deleted, or, as I suspect, if there are genuinely fewer reductions in these subcategories that are no longer recent, but not yet the oldest. This can be the subject of further inquiry.

What we can say now is that the total number of unreferenced BLPs is now showing real decline for at least the first time in four months, possibly longer. It seems to have been the shock of mass deletions that has spurred people into action either to fix or delete these articles. Hopefully the shock will last long enough for a significant reduction to be achieved.