Title: Indifference and Secondary Liability for Copyright Infringement
Abstract: Table of Contents INTRODUCTION I. THE FACTUAL AND LEGAL BACKGROUND OF ROADSHOW FILMS PTY LIMITED V IINET LIMITED II. SECONDARY LIABILITY FOR COPYRIGHT INFRINGEMENT BY AUTHORISATION IN AUSTRALIA A. A Splintered and Confused History B. An Enigmatic Statutory Intervention C. Disharmony in the Trial and Appellate Court in iiNet III. THE HIGH COURT'S DECISION IN IINET A. The Sanction, Approve, Countenance Standard Discredited. B. The Primacy of Section 101(1)(A) Factors 1. Technical and Contractual Power to Prevent Infringements 2. Direct vs. Indirect Power to Prevent 3. Reasonable Steps to Prevent or Avoid Infringements C. Deference to Parliament For Graduated Response Legislation IV. IMPLICATIONS OF IINET IN AUSTRALIA AND INTERNATIONALLY CONCLUSION INTRODUCTION The owners of valuable copyrights in digitized music, films, books and software have been battling the scourge of copyright infringement around the globe for over two decades. (1) A variety of legislative, judicial and policy initiatives have barely made an impact on the extent of copyright infringement occurring globally. (2) Internet intermediaries, such as Internet Service Providers (ISPs), peer-to-peer networks, user-generated content platforms and technology providers enable copyright infringement on such a large scale that lawsuits against individuals for direct infringement is impracticable. (3) Copyright owners' only practical alternative is to attempt to hold intermediaries liable under a theory of secondary liability. (4) Secondary liability theories include contributory infringement, (5) vicarious liability (6) and inducement liability. (7) ISPs could play an important role in preventing online piracy of digital copyright works. ISPs have the technological capability to control traffic flowing through their networks. They also have control over the terms of service that govern their ongoing relationship with their customers. It is economically efficient for ISPs to use these technical and contractual control measures to prevent, or at least impede, their subscribers' infringing conduct online. (8) In recent years, copyright owners have sought to compel ISPs to engage in the battle against online copyright infringement by their subscribers. (9) ISPs are attractive targets for secondary liability lawsuits because they are easily identifiable gatekeepers with deep pockets. (10) ISPs and other intermediaries understandably wish to avoid the cost of, and potential liability for, detecting and deterring infringing conduct online. ISPs obviously prefer to have no affirmative legal duties to actively monitor their users' conduct to deter copyright infringement by subscribers. Several countries, including France and the United Kingdom, have enacted legislation to impose on ISPs an affirmative duty to act against online copyright infringement through schemes. (11) In general, when copyright owners detect copyright infringement online and send a notice to an ISP, these regimes require ISPs to warn their infringing subscribers to stop their illegal activity. If the subscriber continues to infringe, increasing levels of sanctions will typically be applied. (12) Other nations, such as Germany, have refused to enact graduated response legislation. (13) In the United States, copyright owners marshaled sufficient political pressure and threats of litigation to persuade some major ISPs to voluntarily implement a graduated response program even without national legislation. (14) In the absence of a new graduated response scheme, whether imposed by legislation or negotiated agreement, copyright owners have striven to establish secondary liability for ISPs through litigation under existing copyright laws. However, ISPs have not yet been held secondarily liable for their subscribers' infringing acts if the ISP merely remains indifferent to infringement and fails to take action to stop it. …
Publication Year: 2016
Publication Date: 2016-10-01
Language: en
Type: article
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