Don't walk the plank – the relationship between piracy and the doctrine of authorisation

On 7 September 2010, Belgian police led an international police raid targeting a file-sharing network known as The Scene.   

The Scene is alleged to be a loosely aligned group of crackers and hackers, responsible for a large amount of the pirated software and media that becomes available on torrent tracking websites such as The Pirate Bay through the use of peer to peer protocols such as BitTorrent.

Police raided 48 sites in over 14 different countries across Europe, including several sites in Sweden, during which time unconfirmed reports suggest prolific torrent tracking website, The Pirate Bay was offline for an extended period of time 1.

The raid comes just one year after the four founding members of The Pirate Bay were sentenced in a Swedish District Court to a one year jail term and ordered to pay fines of 30 million Kronor (equivalent to approximately $4.5 million)2

The court action against The Pirate Bay alleges the defendants were complicit in facilitating copyright infringement.  The appeal is set to be heard in the coming months.

The recent flurry of international police and judicial activity aimed at peer-to-peer related copyright infringement is part of a global trend3 of directing the enforcement of copyright infringement away from direct individual infringers and towards those who authorise, or are complicit in, facilitating copyright infringement on a larger scale. 

The equivalent provisions used to charge The Pirate Bay founders in Australia may be found in section 101(1) and (1A) of the Copyright Act 1968 (Cth), which relate to the authorisation of unlicensed copying of a copyright work.

For a person to have breached the authorisation laws, there only needs to be an actual act of copyright infringement, that was authorised by the person (i.e. a peer-to-peer protocol developer or torrent tracker). 

In assessing whether a person has authorised unlicensed copying of a copyright work, the Court will consider:

  1. the extent, if any, of the authoriser’s power to prevent the doing of the act concerned;

  2. the nature of any relationship existing between the authoriser and the person who did the act concerned; and

  3. whether the authoriser took any other reasonable steps to prevent or avoid the doing of the act, including whether the authoriser complied with any relevant industry codes of practice4.

The laws relating to authorisation are particularly pertinent for software developers, internet service providers, web designers5 and technology developers generally.  Any person or company that produces a product that has the potential to cause duplication, replication or other copying of copyright works, or is involved in hosting or maintaining internet sites or services which may facilitate the unlicensed transfer of copyright material, must consider how the doctrine of authorisation could make them complicit in the act of copyright infringement.

If you have any queries please contact:
Senior Associate Wayne Zappia on 08 9288 6931 / or
Solicitor Jeremy Newman on 08 9288 6743 /

3In addition to the ‘Pirate Bay’ raids and case, cases include MGM Studios, Inc v Grokster, Ltd 259 F Supp 2d 2039 (2003) (USA), Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183, Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 645, (2010) 26 ALR 215 and [2009] FCA 332

4Section 101(1A) Copyright Act 1968 (Cth)

5Cooper v Universal Music Australiasia Pty Ltd (2006) 156 FCR 380

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.