The outcome of the AFACT vs iiNet case in favour of iiNet will have international ramifications according to telco industry analyst, Paul Budde.
Chief among these will be the way in which the case highlights a global need to shift the way copyright law protecting content producers operated.
“The internet is changing the way we utilise media and the way we utilise information and is of great benefit to society, however, we’re stuck with copyright laws that date back to the 17th century,” Budde said.
“The outcome of this case is a clear indication that those vested interests that have these very rigid copyright rules protecting them will have to adjust to the new digital media internet ear. There’s no doubt that you have to protect content, but it has to be done in a different way that sits within the economy now, not the way it was a couple hundred years ago.”
Also crucial in the outcome was the reaffirmation of the notion that ISPs are, in effect, the middlemen of the internet and therefore could not be viewed as being responsible for the actions of end users, Budde said.
“The same principle applies to Australia Post which is not responsible if it delivers a letter which contains death threats to someone,” he said.
Locally, the principle that ISPs should not be responsible for policing the action of their end users had the potential to re-ignite the debate on ISP-level content filtering, Budde said.
“The question now is: can [communications minister] Stephen Conroy now legally force ISPs to take on the role of policeman,” he said. “While everyone in principle everyone agrees with the idea of protecting children, what he is doing could now be challenged based on the outcome of this kind of court case.”
“Ultimately the case shows that a different approach to censorship and copyright is needed. This court case will stimulate the vested interests in these areas to start rethinking how they address these issues.
Ovum analyst, David Kennedy, played down the result of the case, arguing that the court had simply maintained the status quo in the industry.
“If the case had gone the other way, ISP responsibility for the content and services operating across networks would have increased significantly,” he said. “In fact, the court has simply upheld ‘business as usual’ in the industry and left the primary responsibility for the legality of content with the end user.”
Kennedy added that while the tension between intellectual property (IP) law and new technology wasn’t new, the steady global trend had been towards stronger IP laws through multilateral negotiation.
"If the considerable difficulties in enforcement haven’t stopped this trend, I don’t think that this case will change the trend either," he said. "The case for ISP filtering must stand or fall on its own merits, not on tangentially related court decisions.
"The court has simply found that, under existing law, the ISP wasn’t to be held responsible for the use of content on their networks. They haven’t made any comment on the desirability or otherwise of tougher laws, and they haven’t found that the government can’t create such laws. If the government chooses to make a new law giving ISPs responsibility for some aspect of content control, then the courts would presumably uphold this law too."
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