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News From Oz: Australian Verizon-Style Case: Trawling through the Universities' Records
Posted by Kim Weatherall on Friday, June 06 @ 05:19:35 EDT Copyright
Last Friday, 30 May, a Federal Court judge in Australia handed down a decision awaited, no doubt, by students with some trepidation. Justice Tamberlin has given copyright owners some access to files and data on University computer systems, to search for copyright infringers. Tamberlin J has clearly tried to tread a middle line between giving the full access sought by copyright owners, and the restricted access the Universities argued for. Some interesting stuff in this judgment.

The Case is known as Sony Music Entertainment (Australia) Limited v University of Tasmania, and is available online here

summary - what's the case about?

In this case, Sony, Universal and EMI are seeking an order against three Universities (Sydney, Melbourne and Tasmania)for preliminary discovery to enable it to identify a person against whom Sony might want to commence proceedings.

The basis for the claim is that the Universities host websites, accessible on the web, and that some of these websites have have MP3 files available. some usernames were identified as possible infringers - "dlewis" was one, at the University of Tasmania.

What is apparent from the judgment that there doesn't seem to have been that much argument about the basis for an order. The basic requirements - that the applicant have made reasonable inquiries, that the Universities seem to have information relating to the questions of identity of the alleged wrongdoers etc all seem to have been fulfilled.

The real argument was not about whether access should be granted at all. The privacy or anonymity of alleged wrongdoers was not a concern. This was not a stand on principle which says the users have a right not to be identified.

The real debate was about the scope of the order. The concern of the court was that masses of irrelevant data - some of it personal data of individuals, some of it confidential or privileged - would be accessed by the Record Companies.

The arguments

The Record Companies wanted their expert to have pretty full access to a snapshot saved by the Universities of their computer systems at the time the proceedings were commenced. The Universities wanted to do the search themselves, and provide information (doing searches for certain file types - like mp3 - and certain word strings - like 'ripping' or 'song').

The result

Tamberlin J struck the middle line by saying - the Record Company expert can do the search, and then the Universities can look at the stuff produced and get legal advice about what has to be provided, and what can be masked or not given up.

Some notable features of the case

Note a couple of things here:

  • there was no debate that some information would be provided;
  • there is certainly no presumption that anonymity be protected. You done wrong, you got no privacy, mate.

    The privacy concerns expressed were for those not concerned at all in the proceedings. Tamberlin J refers to the "important public interest in protecting the privacy of those using university facilities, particularly where teh discovery process may disclose totally irrelevant personal information concerning a wide range of individuals and entities." Tamberlin J here expresses faith in the fact that the applicants "are only concerned to obtain relevant information which bears on identification and or the strength or weakness of their allegations in order to protect their intellectual property and not to 'rummage' or 'trawl' through a miscellany of irrelevant material.

    One other thing worth noting was the suggestion around paragraph [27]-[28] that the Universities might themselves be liable for authorising infringement (ie in US terms - for contributory infringement). Ouch. Not at all clear how important this is to the Record Company case.

    The Implications

    There are some obvious implications of the case. Chiefly, it would be a scary time for certain students who may have information that will be revealed. Just recently, several Australian students were charged under criminal provisions relating to copyright infringement (just like the Princeton students were in the United States).

    Second, it will be interesting to see what the Universities do from now. It seems pretty clear that the Universities have exercised much less control over use of their computer systems than private companies generally do. This, of course, is a very good thing. Universities should be places of much more freedom and intellectual exploration; the idea of universities exercising strong control over the use to which their systems can be put is an unappealing thought. However, particularly if a secondary liability argument does end up being run, it seems likely that Universities will be forced to exercise a higher degree of control over what is done with their computers. And this seems a shame. Not because I think widespread copyright infringement is a good thing (hell, I teach intellectual property. I couldn't possibly advocate such a thing). But because it makes universities just that little bit less free.

    Third, of course, there is the fact that this case is proof of the fairly basic fact we all knew - that in a computer age, where your activities are tracked, your clicktrails can come back to haunt you.

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