More clarity has emerged this month in the complex legal world of online file-sharing after Justice Perram of the Federal Court of Australia allowed a preliminary discovery application by the American producers of the film “Dallas Buyers Club” against 6 Australian internet service providers (ISPs) for the names and addresses of account holders who had shared the film on popular file-sharing platform BitTorrent. Following hot on the heels of Justice Perram’s decision, the Communications Alliance completed their industry code to help combat internet piracy, which was submitted for registration with the Australian Communications and Media Authority (ACMA) on 8 April 2015. Finally, the Copyright Amendment (Online Infringement) Bill 2015 which requires ISPs to block access to overseas websites found to be facilitating copyright infringement has been referred to the Senate Legal and Constitutional Affairs Legislation Committee. These updates are positive signs for rights holders and content creators; however artists should be aware that there still remain significant barriers to enforcing their copyright against online infringers.
Dallas Buyers Club v iinet Case
In the case of Dallas Buyers Club LLC v iiNet Limited  FCA 317 delivered on 7 April 2015, Justice Perram of the Federal Court of Australia ordered 6 ISPs, including iiNet Limited, to reveal the names and physical addresses of customers corresponding to 4,726 IP addresses which Dallas Buyers Club LLC’s parent company Voltage Pictures LLC had traced as users sharing their film on BitTorrent. Voltage Pictures had used a software application called Maverick Monitor to identify the IP addresses of users who had shared the film Dallas Buyers Club on the BitTorrent network. These users were people who would have had saved within their designated “shared” folder for their BitTorrent software some part or “sliver” of the film, thus making the movie “available online” in contravention of the Copyright Act 1965 (Cth).
iinet and M2 Group, the company that owns ISP Dodo, have said they will not be appealing the decision.
UPDATE: August 2015 – Justice Perram once again refused to force ISPs to hand over details of customers who illegally downloaded the film unless Voltage Pictures amended their infringement letter to customers and provided a $600,000 bond.
ISP Industry Code
Just one day after Justice Perram’s decision, the Communications Alliance finalised the Copyright Notice Scheme Code 2015, the industry code of conduct for ISPs, and submitted it for registration by the Australian Communications and Media Authority. The Code was instigated by the Federal Attorney-General’s and Minister for Communications’ inquiry into Online Copyright Infringement. As a result of the inquiry, internet service providers (ISPs) were tasked with drafting an industry code to address ISP liability in relation to users infringing copyright online including a process for notifying users when a copyright infringement had occurred. Arts Law’s submission on the Code highlights the importance of the online environment in providing new opportunities for creators, but also the loss of income for those creators due to the prevalence of piracy and copyright infringement online.As we highlighted in our submission on the Code, the lack of sanctions within the Code means that rights holders with little financial means, such as independent artists, will continue to face significant burdens in enforcing their rights. Arts Law hopes there will be a flow-on effect through education of users about copyright infringement which will benefit independent artists. Read Arts Law’s submission to the Code here.
UPDATE: September 2015 – The Communications Alliance has missed the 1 September start date for the Copyright Notice Scheme because they just can' decide who will cover the cost of sending infringement notices to users.
Copyright Amendment (Online Infringement) Bill 2015
On 16 April 2015, Arts Law made a submission in response to the Copyright Amendment (Online Infringement) Bill 2015. If the Bill passes, rights holders will be able to seek orders from Federal Court judges by way of an injunction that would require ISPs to block access to the infringing website which includes “online locations” based overseas. Arts Law supports the proposed Bill as it allows copyright owners to block access to online locations that are engaging in the flagrant infringement of copyright. Arts Law considers that while it is unlikely many independent creators will be able to afford to take legal proceedings to seek injunctions in Court, we support the ability of larger rights holder groups, which are in a position to obtain injunctions to block access to online locations that facilitate the infringement of copyright. We would anticipate a positive flow-on effect to our clients as the result of changes to consumer behaviour.
The Bill has now been referred to the Senate Legal and Constitutional Affairs Committee for industry consultation and review which is due to report by 13 May 2015. Read Arts Law’s submission here.
UPDATE: 22 June 2015 – The Bill finally passed both houses and became law on 26 June 2015. Copyright holders can now apply for a court order to have ISPs block overseas sites that have the primary purpose of facilitating copyright infringement (Pirate Bay is expected to be an early target).
Based on the recent legal proceedings, industry changes and proposed amendments to the legislation, it appears that the primary mechanism for rights holders to enforce their copyright against online infringement will be to take legal action against persistent infringers. While these mechanisms are often beyond the reach of independent artists, these developments also represent a cultural shift in attitudes towards online infringement and a welcome change for artists and content creators seeking to derive a commercial benefit from their works. Arts Law will continue to monitor the progression of the Bill and Code and advocate for the rights of artists. Find out more about Arts Law’s advocacy work around copyright and moral rights here.