Electronic Frontiers Australa (EFA) today expressed concern about a lawsuit filed against Internet Service Provider iiNet in the Federal Court. A consortium of media companies have sued the ISP for allegedly allowing its users to download infringing movies and TV shows by failing to terminate their accounts after allegations of infringement by the copyright industry.“This lawsuit is the latest attempt by the movie industry to bully Internet Service Providers into becoming copyright police,” said EFA spokesperson Nicolas Suzor. “ISPs are not in a position to monitor and terminate internet access to users based upon unsubstantiated threats from copyright owners, and should not be asked to do so.”Recognising the need for immunity from copyright infringement suits such as these, the Australian Government introduced safe harbours for Internet Service Providers as part of the Australia - United States Free Trade Agreement (AUSFTA). These safe harbours provide that ISPs will not be liable to copyright owners for merely routing internet traffic as long as they “adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers.” iiNet has publicly stated that it will not disconnect customers on mere allegations of infringement, and that it will comply with its obligations to terminate a customer’s internet access after such allegations have been properly proved in a court of law. EFA strongly supports iiNet’s position on this issue, and believes that Internet Service Providers cannot and should not be required to pass judgments on the legitimacy of their customers’ actions.“Copyright infringement is a complicated area of law with numerous exceptions. ISPs are simply not equipped and certainly should not be asked to play the role of judge, jury, and executioner upon allegations of infringement,” Suzor continued. “Every citizen has a right of due process under the law, and when faced with having their internet service terminated, every citizen has the right to ask that the case against them be proven first.”Experience in the United States of America has shown that allegations of infringement are often made without basis. There have been documented cases in which copyright owners have even alleged that a simple laser printer has illicitly downloaded and shared copyright movies, for example. There have also been allegations of infringement for uses which are clearly permissible under US fair-use law, such as the case of a short home movie in which a baby was filmed dancing to a song on the radio.Suzor expressed concern that the approach taken by the movie industry will unjustly punish users without due process: “To shift the burden of proof, and require that ISPs terminate access to users upon mere allegations of infringement, would be incredibly harmful to individual internet users in Australia. With the mistakes we have seen in the past overseas, where innocent users have been mercilessly and incorrectly targeted by copyright owners, a regime which requires disconnection without proof goes against all notions of fairness.” EFA is also highly concerned that ISPs are being asked to violate the privacy of internet users by spying on their online activities.EFA believes that if this case were to erode the utility of Australia’s safe harbour provisions, it would be extremely stifling to internet innovation and new technology in this country. The existence of safe harbours provide the certainty that operators of communications networks need in order to provide their services to the public. The public benefits greatly from technologies such as BitTorrent, and platforms such as YouTube and MySpace. These services are used for much more than simply exchanging material that infringes copyrights. However, without safe harbours, these services would be likely to be too difficult or risky to operate, or would be so restricted as to lose the majority of their value.The safe harbours in Australian copyright law exist to protect providers of innovative new technologies from copyright infringement claims which would shut them down. The way the safe harbours are designed also protects users from having their accounts terminated without due process. EFA believes that any weakening of either of these two protections is likely to have disastrous effects for Australian internet users.In fighting this lawsuit, iiNet will be defending the rights of all Australian Internet users and we wish them luck.
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