Are You Breaking the Law?

By Charles Hwang

Reviewed by Jennifer Williams

If you’ve ever downloaded a song, movie or software for free using programs like BitTorrent or similar hive-type programs, you’re more than likely aware that you’ve broken the law. You probably thought to yourself that there are too many people doing the same thing you’re doing and you might have even thought that movie studios would rather go after the deep pockets.

However, if you’re an Internet Service Provider in Australia, you can breathe a sigh of relief. Judge Arthur Emmett of Australia’s Supreme Court ruled that iiNet’s “conduct did not amount to authorization of the primary acts of infringement…” This means that industry players like Paramount and Walt Disney were unable to lay blame on Internet Service Providers (“ISP”) for providing the technology to customers allowing them to infringe their copyrights in movies, music and more.

This legal action is similar to the suit brought by Universal Studios against Sony decades ago. Universal tried to argue that Sony’s sale of the VCR played a part in the customer’s infringement by providing technology that allowed customers to record programs to be viewed at a later time. There the court held that Sony was not liable for contributory infringement because the VCR was widely used for legitimate purposes, such as watching home movies.

Just as the VCR had many other legitimate purposes, the Internet and the service provided by the ISPs has many more legitimate purposes than simply downloading copyrighted movies. Just as Sony, by selling their VCRs, didn’t authorize the acts of infringing users, ISPs like iiNet did not authorize users to download movies using their service.

But what does this mean for the customers? What does this mean for the legions of users who at this very moment are downloading songs, movies, and software? At least in Australia it means that at the moment players like Walt Disney and Paramount cannot go after the deep pockets; perhaps these companies will only go after the largest and worst infringers. On the other hand, it might not be worthwhile for the companies to bring any legal action against consumers. We will have to wait and see what the companies decide. Will they appeal the decision against them or will they take on a new course of action and pursue legal action against the consumers?

For the majority of the ISP users, doctrines that may protect their actions such as fair use will likely not apply. It will simply come down to how badly these companies want to prosecute delinquent users. Only time will tell, but next time you think about downloading a movie, you might want to think twice.

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