Copyright safe harbour is for losers
A lot of industry people think that obeying the copyri
ght ‘safe harbour’ rules means a CSP won’t breach copyright. That’s not so.
In fact, the safe harbour rules only become relevant if a CSP has already been found ‘guilty’ of copyright breach. Even though the CSP is ‘guilty’, as long as it has operated inside the safe harbour it cannot be ordered to pay damages.
So safe harbour is truly just for ‘losers’. But if you do lose an infringement case, you’ll feel like a winner if your safe harbour claim holds up and damages aren’t awarded.
About safe harbour
The safe harbour rules were introduced into Australian copyright law in 2005. They limit the orders a court can make against an internet service provider that is found to have breached a third party’s copyright.
The key limitation is that there can be no award of damages, and that’s where the ‘big bucks’ normally come from.
But it only applies after the CSP is found ‘guilty’
Here’s an analogy. Imagine that the government introduced safe driving courses and said that anyone who completes one will get a 25% discount off any court speeding fines they are up for in the following two years.
You complete the course, and a week later you get charged with speeding. You dispute the charge and fight it in court.
In making your defence, it’s irrelevant that you completed a safe driving course. You defend the charge solely on the basis that you say you were not speeding. If the court accepts that, you win. Nothing to do with safe driving courses.
But if you lose, the judge says ‘It’s a $500 fine.’ That’s when you say, ‘But I have done a safe driving course and I claim my 25% discount.’ The only relevance of your course is if you have already been found guilty.
It’s exactly the same for safe harbour
Safe harbour is a limitation on ‘penalty’ if an ISP has been found ‘guilty’ of copyright infringement. It isn’t a defence to alleged copyright infringement.
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