(Disclosure: with a little help from a New Zealand law firm) New Zealand high-availability software firm Maximum Availability has won an injunction in a United States court against a US competitor that (it alleges) made false claims about MA’s products. The interim order prevents the competitor from further distributing the specific materials anywhere in the world, and requires them to send a clarification to all parties who received the information. More details are here.

YouTube defeats Viacom – a boost for NZ’s safe harbour?

A US judge has dismissed Viacom’s massive copyright claim against YouTube, saying that YouTube was protected by the “safe harbour” provisions of the US’s Digital Millennium Copyright Act. The DMCA safe harbour provisions are similar to New Zealand’s own, found in section 92B of the Copyright Act (see my Computerworld article here).

The question with safe harbour laws such as New Zealand’s and the DMCA, is at what point is does the ISP “leave the harbour”? What is the “something more” that an ISP must do to lose that protection? The YouTube case provided a perfect opportunity to test those rules. The judge said that YouTube remained in the safe harbour, despite having considerable knowledge of infringing activities:

[The judge] disagreed with Viacom’s claims that YouTube had lost the so-called “safe harbor” protection under the DMCA. Viacom … maintained Google did not qualify, because internal records showed Google was well aware its video-hosting site was riddled with infringing material posted by its users. [The judge] ruled that YouTube’s “mere knowledge” of infringing activity “is not enough.”

“To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA,” the judge wrote.

He said that YouTube had no way of knowing whether a video was licensed by the owner, was a “fair use” of the material “or even whether its copyright owner or licensee objects to its posting.”

New Zealand’s s92B is undergoing further amendment (as part of the tortuous reform process mainly centred on s92A), but the general process remains. The YouTube case is already under appeal, but whatever the final outcome, will be of interest in New Zealand due to the similar (though not identical) safe harbour provisions in New Zealand’s Copyright Act.

Judge Harvey gives NZ’s first multimedia judgment

Judge David Harvey has delivered what is said to be NZ’s first digital judgment, a 9MB PDF including embedded images and YouTube links. (New Zealand still hasn’t sorted out online publication of all judgments, but fortunately the Herald is hosting the DIA v TV Works judgment here.)

Judge Harvey is widely known as New Zealand’s most tech-savvy jurist, and uses his knowledge and interest in technology to push the odd boundary (in a judicious manner, of course). His ruling in this case is being celebrated in online circles (admittedly pro-gambling sites) and we can be grateful that Judge Harvey heard this case, as he was able to bring his understanding of not just internet technology but also online custom to bear. Let’s hope other judges follow his lead. Also, if digital judgments are now en vogue, surely it is time for e-filing?

As a point of contrast, I’m reminded of this story from a few years back:

Judge Peter Openshaw, 59, brought an Internet terror trial to a halt when he admitted he struggled to cope with basic terms like “website”. The Judge said he was completely lost by the terminology during the questioning of a witness about a Web forum used by alleged Islamist radicals. He told stunned prosecutors at Woolwich Crown Court in south east London: “The trouble is I don’t understand the language. I don’t really understand what a website is.”

If you operate a website, ISP or other online service in New Zealand, a recent law change provides you with a limited, but useful, protection against some types of copyright liability.

The new section 92B (no, not 92A) of the Copyright Act 1994 came into force last year. While the attention was on its “guilt by accusation” neighbour, section 92B has quietly provided all website operators, ISPs, and businesses who have a LAN with what is known in the US as a “safe harbour” provision.

Section 92B states (allowing some rewording for clarity) that merely because a person uses a website/ISP/online service/LAN to infringe copyright, then that by itself means that the system/ISP operator:

1. Does not infringe the copyright;
2. Must not be taken to have authorised the infringement of copyright; and
3. Unless a Court order is breached, is safe from any criminal or civil action.

[The words in bold are important, discussed below.]

This is a fair recognition of the role of website operators and ISPs – that they provide an online facility, venue or set functions and in reality have very little say over how users actually use their systems.

Importantly, the protection of this benefit does not only apply to ISPs. Due to the very wide definition of Internet Service Provider in the Copyright Act (see my post about this here), section 92B protects all websites and other online services, including bricks-and-mortar businesses with LANs.

For example, section 92B should protect you from any threat of civil or criminal liability in the following cases:

• If you run a business and one of your employees is using your office file server to store copyright-infringing material, without your knowledge.
• If you run a web application, and a user uploads copyright-infringing material, without your knowledge.
• If you run a website, and a user uses it to send emails that infringe copyright, without your knowledge.

There are many other examples where section 92B will provide some comfort to operators – perhaps not so much from actual liability, but at least from the threat of liability (e.g. an intimidating letter from a law firm).

However, the common element of the examples above is that the infringement must be “without your knowledge”. As noted in earlier, if a person uses your system to infringe copyright, then that by itself does not make you liable, but if there is “something more” then section 92B may not protect you. The Act does not define what “more” is required to remove the protection of section 92B, and it is therefore up to Courts to decide this over time. It is possible that this section will become the subject of much judicial interpretation.

It is safe to say, though, that if a website or ISP had actual knowledge of specific, repeated instances of copyright infringement by an identified user which continued over a long period, and took no action despite being requested to, then it is unlikely that the website or ISP could rely on section 92B to avoid civil or criminal action.

In other words, section 92B does not remove all responsibility from websites and ISPs. But it does at least provide a substantial and fairer level of protection, above that of many other countries, that better reflects the realities of providing networked services.