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A Tort Law Framework for Copyright Authorisation

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A Tort Law Framework for Copyright Authorisation A Tort Law Framework for Copyright Authorisation Kylie Pappalardo BCI (QUT), LLB (Hons. 1) (QUT), LLM (QUT), LLM (GU) Submitted in total fulfillment of the requirements of the degree of Doctorate of Philosophy (PhD) Faculty of Law and Business Thomas More Academy of Law Australian Catholic University June 2016 Statement of Sources I, Kylie Pappalardo, declare – This thesis contains no material published elsewhere or extracted in whole or in part from a thesis by which I have qualified for or been awarded another degree or diploma. No other person’s work has been used without due acknowledgment in the main text of the thesis. This thesis has not been submitted for the award of any other degree or diploma in any other tertiary institution. Signed Kylie Pappalardo For Nic. Acknowledgements This research was funded by an Australian Postgraduate Award from the Commonwealth Government. I also received financial support from the Australian Catholic University and the ARC Centre of Excellence for Creative Industries and Innovation. I owe a great deal to my supervisors, Professor Brian Fitzgerald, Professor Julie Cohen and Dr. John Gilchrist, not only for their wonderful academic guidance but for their tremendous personal support. Thank you for your sage advice, your attention to detail and, especially, your kindness. Thank you for challenging me. Your mentorship has made all the difference. Thank you as well to Dan Hunter, Laura Simpson-Reeves and members of the QUT Law and Justice PhD Writing Group for thoughtful comments on earlier iterations of this thesis. For my family and friends, who were endlessly patient with my frequent absences from normal life and my stress-induced forgetfulness, and who supported me tirelessly throughout it all. Mum, Dad, Kirsty and Martine, I love you. Heart-felt gratitude to Kristyn Middleton, Lara Miller, Celeste Bennett, Lauren Skarott and Laura Simpson-Reeves for always having my back and always making me laugh. I owe special thanks to two extraordinary women. Ellyse Fenton, for your honesty and vulnerability in allowing yourself to be seen, even in the struggle. You gave me hope during the most difficult times of this process. Susana Frioni, for being my guide and teaching me to breathe again. Namaste. Finally, to Nic Suzor, whose encouragement, love and generosity made this possible. Who believed in me when I did not believe in myself, and who always makes everything right again. Table of Contents Chapter 1: Introduction: An unclear and unbounded authorisation law ............... 3 1. Research question ............................................................................................... 4 2. General context ................................................................................................... 8 3. Legal context ..................................................................................................... 14 3.1 Australian authorisation law ........................................................................... 14 UNSW v Moorhouse ........................................................................................... 15 Post Moorhouse ................................................................................................. 18 Roadshow Films v iiNet ..................................................................................... 21 3.2 Problems with the law ..................................................................................... 24 What does authorisation mean? ......................................................................... 25 What is the relevance of ‘indifference’? ............................................................ 26 What is needed for a ‘power to prevent’ infringement? .................................... 29 How do the statutory factors relate to each other? ............................................. 31 4. Theoretical framework ...................................................................................... 32 4.1 Responsibility theory ...................................................................................... 32 4.2 User rights theory ............................................................................................ 38 5. Methodology ..................................................................................................... 40 6. Structure of thesis .............................................................................................. 41 Chapter 2: The causal role of online intermediaries in copyright infringement: Grounding a duty to act ............................................................................................. 45 1. Introduction ....................................................................................................... 45 2. The misfeasance/nonfeasance distinction ......................................................... 48 Figure 1 – Negligence liability: Separating misfeasance from nonfeasance ........ 51 3. Risk creation and causal relevance ................................................................... 54 (1) The abnormal conditions test ....................................................................... 58 (2) The natural consequences test ...................................................................... 59 Figure 2 – Hart and Honoré’s normative approach to causation .......................... 61 4. Causal relevance and copyright authorisation .................................................. 63 Figure 3 – A causation framework for copyright authorisation ............................ 71 5. Applying the causation framework to copyright intermediaries ....................... 72 5.1 Internet service providers ................................................................................ 72 5.2 Payment intermediaries ................................................................................... 73 5.3 Intermediaries that facilitate peer-to-peer filesharing ..................................... 74 5.4 Developers and distributors of technologies that enable copying .................. 75 5.5 Content sharing platforms ............................................................................... 78 6. The causation framework is a threshold test ..................................................... 78 7. Advantages of the causation framework ........................................................... 80 8. Conclusion ........................................................................................................ 83 Chapter 3: User rights theory and its relevance to intermediary liability ........... 85 1. Introduction: users and copyright ..................................................................... 85 2. Users and intermediary liability case law ......................................................... 93 2.1 The absence of users in the case law .............................................................. 93 2.2 Contemplating opportunities for non-infringing uses ................................... 104 2.3 Conclusion .................................................................................................... 110 3. A value-driven model of the user .................................................................... 110 3.1 A cast of incomplete characters: existing models of the user ....................... 110 3.2 Autonomy ..................................................................................................... 113 3.3 Self-expression .............................................................................................. 115 3.4 Personal connection ...................................................................................... 117 3.5 Education ...................................................................................................... 119 3.6 Community .................................................................................................. 120 3.7 Play ............................................................................................................... 122 3.8 Conclusion .................................................................................................... 123 4. Conclusion: users matter ................................................................................. 124 Chapter 4: Breaching the duty to minimise the risk of infringement: The negligence calculus .................................................................................................... 127 1. Introduction ..................................................................................................... 127 2. Duty of care ..................................................................................................... 129 3. Standard of care .............................................................................................. 133 4. Breach of the standard of care ......................................................................... 136 Harm is foreseeable, not insignificant, probable ............................................. 138 Likely seriousness of the harm ........................................................................ 140 Burden of taking precautions ........................................................................... 140 Social utility ..................................................................................................... 142 Other considerations: customary standards ..................................................... 143 Balancing the factors .......................................................................................
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