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Thursday, 04 February 2010 14:14

All eyes on Conroy: iiNet ruling begs questions

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The ruling in favour of the ISP iiNet in its long running court battle with Hollywood movie studios presents a whole new set of issues for Government on how to provide adequate protection for intellectual property in the emerging digital economy.

And equally fascinating, the ruling adds yet more colour and movement to one of the industry's great feuds: The apparent antipathy that exists between iiNet managing director Michael Malone and Communications Minister Stephen Conroy has been a slow burning fuse.

At a CommDay telecommunications conference last April, Senator Conroy controversially attacked the iiNet defence in its case with the studios saying it "belongs in a Yes Minister episode." He was openly critical of iiNet's plan to say it simply did not know that its users were breaching others' copyright.

The comments drew immediate criticism from shadow Attorney-General George Brandis and former communications shadow Nick Minchin, with both calling the remarks reckless and grossly improper given the was a case before the courts.

And Malone threatened to sue the Minister.

Personal antagonism aside, Senator Conroy's comments did seem to reveal which way he thought the case was going to go. That is, internet service providers had something beyond a duty of care to ensure their users were not stealing the copyrighted materials of others.


Now the ruling suggests otherwise. And that means Government will probably need to have another look at legislative means of protecting copyright. As the NBN comes on line, as the digital economy gathers momentum, this is not small beer.

And while Senator Conroy is forever telling the Opposition benches that the NBN is not simply about faster movie downloads, the Hollywood studios would beg to differ.

Senator Conroy had not commented on the case when this story was published, but given its broad ramifications for the digital economy, it is likely he will. Through more recent comments about the case, the Minister seemed clear that the case should 'settle the issue' of ISP responsibility.

It hasn't, and the movie studios are already moving to press the Commonwealth for better legislated protection.

Speaking on behalf of the Australian and US film companies that launched the action, Australian Federation Against Copyright Theft (AFACT) executive director Neil Gane said: "We believe this decision was based on a technical  finding centred on the court's interpretation of the how infringement's occur and the ISPs ability to control them."

"We are confident that the Government does not intend a policy outcome where rampant copyright infringement is allowed to continue unaddressed and unabated via the iiNet network."

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