Some idle thoughts on Dallas Buyers Club LLC v iiNet

In his August 14th 2015 judgement Justice Perram said “If the explanatory memorandum is to be believed, ss 115(5)-(8) are aimed squarely at peer-to-peer file sharing. There are aspects of the provisions which are puzzling from a drafting perspective. The use of the expression ‘on a commercial scale’ is not defined although subs (7) tells one what one is to take into account in determining whether a particular infringement was on such a scale. This appears to be focussed on the possibility that whilst one might be able to show that a particular user shared three copies of a work by uploading it, one might not be able to show much about what those three individual downloaders went on to do by way of sharing themselves.”

Peer to peer file sharing has been around a long time. Bittorrent dates back to 2001 and Napster to 1999. But you might be forgiven for thinking that the Copyright Act 1968 didn’t anticipate peer to peer file sharing and indeed it didn’t.

According to CommLaw the history of amending Section 115 of the Copyright Act recorded in the End Notes is “am. No. 110, 2000; No. 34, 2003; No. 158, 2006”

These all occurred during the Howard government and Daryl Williams was Attorney General in 2000 and Philip Ruddock was in 2003 and 2006. The 2006 amendments were very important because they implemented the US-Australia Free Trade Agreement. I have been told that representatives of the Hollywood studios sat in the Attorney General’s offices drafting the amendments so it must be particularly galling for them that the judge in this case could not see how to apply the Copyright Act to this peer to peer sharing.

There must have been some amazing tantrums after the judgment was handed down.

Perhaps next time the Copyright Act is amended some technologists might be consulted during the process, but perhaps the world is better if they just mess it up so that it’s unenforceable.

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