Moments of flux in intermediary liability for copyright infringement

Suzor, Nicolas P., Choi, Rachel, & Pappalardo, Kylie M. (2016) Moments of flux in intermediary liability for copyright infringement. In Perry, Mark (Ed.) Intellectual Property Governance for the 21st Century: Global Evolution. Springer, pp. 129-149.

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This chapter provides an overview of a recent shift in regulatory strategies to address copyright infringement toward enlisting the assistance of general purpose Internet Service Providers. In Australia, the High Court held in 2012 that iiNet, a general purpose ISP, had no legal duty to police what its subscribers did with their internet connections. We provide an overview of three recent developments in Australian copyright law since that decision that demonstrate an emerging shift in the way that obligations are imposed on ISPs to govern the actions of their users without relying on secondary liability. The first is a new privately negotiated industry code that introduces a 'graduated response' system that requires ISPs to pass on warnings to subscribers who receive allegations of infringement. The second involves a recent series of Federal Court cases where rightsholders made a partially successful application to require ISPs to hand over the identifying details of subscribers whose households are alleged to have infringed copyright. The third is a new legislative scheme that will require ISPs to block access to foreign websites that 'facilitate' infringement. We argue that these shifts represent a greater sophistication in approaches to enrolling general purpose intermediaries in the regulatory project. We also suggest that these shifts represent a potentially disturbing trend towards enforcement of copyright law in a way that does not provide strong safeguards for the legitimate constitutional due process interests of users. We conclude with a call for greater attention and research to better understand how intermediaries make decisions when governing the conduct of users, how those decisions may be influenced by both state and non-state actors, and how the rights of individuals to due process can be adequately protected.

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ID Code: 91196
Item Type: Book Chapter
Keywords: copyright, intermediary liability, graduated response, website blocking, preliminary discovery
DOI: 10.1007/978-3-319-31177-7_8
ISBN: 978-3-319-31176-0
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Intellectual Property Law (180115)
Divisions: Current > Research Centres > Digital Media Research Centre
Current > QUT Faculties and Divisions > Faculty of Law
Current > Schools > School of Law
Copyright Owner: Copyright 2016 Springer
Deposited On: 13 Dec 2015 23:21
Last Modified: 10 Jan 2017 03:29

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