Copyright Infringement: A Worldwide Update
Tuesday 3rd July 2012
Article written by: Thomas Huthwaite
File sharing in various forms has been a major focus for many copyright owners in the past few years. Cases of alleged infringement include Kim Dotcom’s “MegaUpload”, Richard O’Dwyers “TV Shack”, resilient “The Pirate Bay”, and of course peer-to-peer sharing via torrent software.
After a new-years bout of legal activity, mid-2012 appears to be in a lull.
As to the major stories, Kim Dotcom is awaiting his extradition hearing of 6 August 2012. The United States wants him extradited from New Zealand to face copyright, racketeering and money laundering charges.
In the meantime, Mr Dotcom’s lawyers have argued that the removal of relevant data from New Zealand by the FBI was illegal, and should be returned for the purposes of the New Zealand trial. On 15 June 2012, Justice Winkelmann ordered that the FBI are to copy and return the data, comprised of 150 terabytes and 10 million emails. Whether or not all of the data will be copied and returned in time for the August hearing remains to be seen.
On 28 June, Justice Winkelmann also ruled that search warrants used in the Dotcom manor raid were invalid as they authorised the seizure of irrelevant material. In acting on the invalid warrants and seizing a broader range of material than was required, the search and seizure was illegal. The fact that the police continued to hold irrelevant material was also taken to show that the scope of the warrant was exceeded.
From 4 July, arguments will be made regarding whether data and other assets seized are relevant and admissible in respect of the copyright charges.
In a similar situation in the UK, Richard O’Dwyer, the 24 year old accused of mass copyright infringement, is awaiting his extradition appeal on 30 July 2012. Unlike the millions of dollars alleged to have been made by Mega Upload, Mr O’Dwyer’s website, TV Shack, is said to have earned a modest $290,000. Also unlike Mega Upload, TV Shack did not host copyright material – it simply provided links for users to access the copyright material.
Despite this, Mr O’Dwyer’s extradition to the United States was approved at first instance. His current appeal seeks to overturn that decision.
The Pirate Bay, one of the world’s most resilient (and self-professed) copyright infringers, has been the subject of several lawsuits. More recently, these suits have involved claims by copyright holders that internet service providers (ISPs) are indirectly liable for copyright infringement if they knowingly allow their users to access The Pirate Bay.
In April 2012, The London High Court ruled that both users and operators of The Pirate Bay infringe copyright. For this reason, Justice Arnold ordered all major British ISPs to block access to The Pirate Bay. Six major ISPs, said to account for 92% of the United Kingdom’s internet connections, have now blocked all access to The Pirate Bay.
Similar results have been reached in other European countries, with blocks now in place in Denmark, Belgium, Germany, Finland, the Netherlands, Italy, and Greece. (Note that other jurisdictions, such as Australia, have refused to find ISPs liable for the actions of their users.)
The European Commission, as of 4 June 2012, has also launched a public consultation on procedures for notifying and acting on illegal website content. The public consultation focuses on the uneven approach within the European Union relating to the obligations of website service providers who are aware of illegal content being hosted on their websites.
There is also more to come in Australia this year, with telecommunication company Optus awaiting a decision on its application for special leave to appeal to the High Court, following the Federal Court’s decision in National Rugby League Investments Pty Limited v Singtel Optus Pty Limited  FCAFC 59.
In that case, the Full Federal Court unanimously overturned the judgment of Rares J at first instance, and held that Optus’ TV Now service infringed the copyright of the Australian Football League, the National Rugby League and Telstra Corporation by allowing users to stream television broadcasts of AFL and NRL games to their mobile devices. As Optus was making the copies for streaming on mobile devices, it could not invoke the copyright exception of private use.
Coming full circle back to New Zealand, two accused file-sharers have escaped punishment following their third-strike notices under the Copyright (Infringing File Sharing) Amendments. The Recording Industry Association of New Zealand (RIANZ) did not apply for the cases to be heard before the Copyright Tribunal, meaning that the strikes for the two accused have been set back to zero.
It is unclear why the decision was made, or whether RIANZ intended to let the opportunity lapse. However, the decision (or lack thereof) is surprising given that RIANZ has been among those complaining that the costs involved in filing copyright notices is too high. Each of the accused was potentially liable for up to $15,000 before the Copyright Tribunal.
The legal bulk of these copyright battles continues below the surface, with the media only reporting major outbreaks and game-changing decisions. However, it appears that a slow evolution of copyright in the digital era is underway.
 There are ways of overcoming the blocks currently in place. However, the legality of such methods, such as use of proxy servers and virtual private networks (VPNs) has not yet been tested.
Roadshow Films Pty Limited v iiNet Limited  FCAFC 23;  HCA 16.
 The Ministry of Economic Development is currently undertaking a review of the $25 fee currently charged by ISPs for processing each infringement notice.