Australia’s Internet Censorship Law to be Tested in Court

Accusations of abuse are flying in Australia right now. A construction company has demanded an ISP block another construction website based on claims of copyright infringement. The demand is going to be tested in court.

The news comes from Australian media outlet ABC. Moray and Agnew, a law firm acting on behalf of Simonds Homes, sent a demand letter to a small ISP ordering the censorship of CHM Constructions. The accusation was that the website was intended solely to infringe copyright. The sections of the law being referenced was apparently designed to block websites accused of infringing copyright of things like music, movies, and software.

The CMH Construction website is what is being accused of infringement. The official website of Simonds Homes appears to be this site.

On first blush, CMH Construction doesn’t appear to offer the latest hit albums, the current blockbusters in theatre, or the high (and maybe sometimes overpriced) end software. So, it’s hard to see where the claim about copyright comes from.

Some have said that this is actually an issue about trademark. Comparing the two websites as it stands now, it’s actually quite difficult to see how the site is supposed to be confusingly similar. There is a slideshow along the top and a menu bar at the top, but such site concepts are quite common-place. The only thing we found on the site that even appears to relate to each other is the use of Simonds Homes part way down CMH Construction’s website. That features a blurb about what they do and links to the Simonds Homes official web page. At worst, the site may have to remove the logo. Even then, there might be a case to argue that this is Fair Dealing. In any case, basing a complaint on anything confusingly similar may fall within the realm of Trademark law, not copyright law.

Currently, the ISP has reportedly not complied with the 7 day order and will be seeing the law firm in court.

The case has attracted criticism from free speech advocates. From the ABC report:

“Section 115 was introduced, with great fanfare, by the Abbott government as a means of dealing with so-called audio-visual ‘piracy’,” said Internet Australia’s CEO Laurie Patton.

“The lawyers involved here appear to be using the provisions of 115 for a purpose for which it was not primarily designed, however lawful their actions may be.

“The problem for smaller ISPs is the potential costs involved in defending a matter like this and so they simply may not bother.

“So innocent sites could be victims of malicious actions, say, by competitors or aggrieved customers.”

The court case may be important from an International perspective as well. During our review of the final leaked copy of the TPP (Strans-Pacific Partnership), we found site blocking provisions in there as well.

It may be important in that people who are against censorship will not only have philosophical and theoretical arguments against ISP level Internet censorship, but this case has the potential for being a concrete example of what could go wrong if Internet censorship is implemented in other countries – all thanks to provisions in the TPP.

It will no doubt be of interest to see what becomes of this case.

(Via /.)

Drew Wilson on Twitter: @icecube85 and Google+.

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