[LINK] leaked treaty, no policing role for ISPs in copyright breaches

stephen at melbpc.org.au stephen at melbpc.org.au
Wed Sep 8 00:35:02 EST 2010

Piracy setback for movie giants 

Louisa Hearn  September 7, 2010 - 2:48PM

The movie giants appear to have lost key political backing in their 
international efforts to police illegal downloading through ISPs, 
throwing the legal spotlight back on to the long running piracy case 
launched against iiNet in Australia.

Knowledge Ecology International, an organisation that investigates 
intellectual property rights, claims to have published a leaked version 
of the most recent draft of an international copyright treaty that does 
not prescribe a policing role for ISPs in copyright breaches.

This international treaty, called the Anti-counterfeiting Trade Agreement 
(ACTA), is an international effort to create a legal framework that will 
guide policy makers tasked with setting national copyright laws.

The film industry has been lobbying hard to make ISPs liable for tracking 
users illegally downloading copyright content, and implementing a three-
strikes policy that cuts off infringers' internet usage after three 

Although early rumours circulating about the treaty indicated ISPs might 
be handed responsibility for policing this, the latest leaked draft 
appears to back away from that scenario.

Rick Shera, a blogger and intellectual property lawyer for Lowndes Jordan 
in New Zealand, writes on his blog that the draft appears to "remove 
most, if not all, requirements for treaty countries to impose third party 
liability on ISPs and other third party providers", leaving only "a 
relatively benign set of provisions".

"The awaited decision on the iiNet appeal in Australia, heard last month, 
becomes more important. In the absence of ACTA dictating third party 
liability principles, iiNet will become the touchstone," he writes.

In the eight-week iiNet trial, an Australian court examined whether or 
not the ISP authorised customers to download pirated movies and Justice 
Dennis Cowdroy found in February that the ISP was not liable for the 
downloading activities of its customers.

Now that finding is being appealed against, the outcome of the case will 
take on much wider significance, say industry watchers.

Peter Coroneos chief executive of the Internet Industry Association said 
that, although the treaty would come too late to influence the outcome of 
the iiNet case, it could affect the outcome of cases launched by the film 
industry in the future.

He added that if the conditions proposed in the leaked draft treaty 
prevailed, then the outcome of the iiNet case would be likely to have a 
significant influence on future Australian piracy cases.

"Company obligations would be defined by the outcome of this case and the 
subsequent appeal, but the treaty will have more weight in setting up a 
de facto global standard," he said.

Steve Dalby, chief regulatory officer for iiNet said he had previously 
received assurances that the new treaty would not imbue ISPs with 
responsibility for policing the actions of their users with a three-
strikes policy.

"This is really a conversation that has being going on around the world 
in a variety of jurisdictions ... but there is no fine detail about how 
it all might work ... we've said it just isn't going to work."

The Australian Federation Against Copyright Theft (AFACT), which launched 
the court action against iiNet, did not want to comment specifically on 
the leaked document, but a spokesperson said: "AFACT has always 
maintained that ISPs have a responsibility to prevent online copyright 
theft. With the opportunity to carry content comes a responsibility to 
protect it. ISPs have a duty to ensure that their profits do not come at 
the expense of the rights of the creative 



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