Media | Article
iiNet decision frees other ISPs from risk of reprisals from copyright owners
Friday 5 February 2010
On 4 February 2010, the Federal Court of Australia gave its highly anticipated judgment in Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24. This case is widely regarded as a test case on the issue of whether copyright owners can hold Internet Service Providers (ISP) responsible for authorising the copyright infringements of users.Background
Roadshow Films Pty Ltd, along with 33 other applicants representing major motion picture studios in Australia and the United States (Roadshow), initiated proceedings against Australian ISP iiNet Ltd (iiNet), for infringement of copyright in a large catalogue of cinematograph films (Films). The Australian Federation Against Copyright Theft assisted Roadshow in the conduct of its claim.
Roadshow's primary claim was that subscribers and other users of iiNet used a BitTorrent based peer to peer system (BitTorrent System) in combination with iiNet’s internet facilities to download minute packets of data which, when amassed, comprised files containing the Films. Roadshow claimed that this amounted to infringement of its copyright in the Films and that, in failing to notify, suspend or terminate subscriber accounts in response to the alleged acts of infringement, iiNet had "authorised" the infringement.
In its defence, iiNet argued that it was a general purpose ISP and not a facility for "making available", "electronically transmitting" or copying cinematograph films. iiNet's position was that it continued to provide its services to its users, even in light of allegations of copyright infringement being made against it, as a result of its contractual obligations to its subscribers.
Further, iiNet argued that it did not control, sanction, approve or countenance the conduct of any user which would result in an infringement of copyright and that it was not liable to Roadshow as it did not create, operate or promote the BitTorrent System.
iiNet also argued that in the event of a finding of infringement, it would be able to rely on the "safe harbour provisions" contained in the Copyright Act 1964 (Cth), which limit the remedies available against ISPs for infringement of copyright if certain conditions are met.
Key findings
His Honour framed the central issue as "whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users".
His Honour answered this question in the negative, finding in favour of iiNet and dismissing Roadshow's application.
His Honour held that iiNet:
(a) users did infringe copyright existing in the Films; and
(b) had knowledge of the infringement and did notstop the infringement from occurring,
but that this did not mean that iiNet authorised the infringements to occur.
Reasons
His Honour emphasised the distinction between the provision of the "means" of infringement and the provision of a "precondition" to infringement.
In previous authorisation cases (such as Kazaa and Cooper) the authorisers of copyright infringement provided the "means" of infringement. That is, the authorisers intentionally structured their respective websites and software to encourage copyright infringement.
In this case, his Honour held that iiNet's provision of internet access was merely a "precondition" to infringement, and that internet access was not of itself the "means" of infringement.
As a result, iiNet could not be said to be "sanctioning, approving or countenancing copyright infringement". Rather, the infringement occurred as a result of the iiNet user’s use of the constituent parts of the BitTorrent System over which iiNet had no control.
His Honour also held that, while iiNet had in place a scheme for notification, suspension and termination of subscriber accounts, this did not equate to iiNet having the power to prevent copyright infringement or being able to take reasonable steps to prevent infringement.
Concluding remarks
His Honour noted that ISPs provide a "legitimate communication facility", one that is "neither intended nor designed to authorise infringement", and that it is only by means of the illegitimate application of a BitTorrent System that copyright infringements are carried out.
While his Honour recognised the large scale of copyright infringements occurring in Australia and overseas, he stated that this should not necessitate or compel a finding of liability for authorisation.
Implications
The decision is the latest in a line of cases that consider what constitutes "authorisation" of copyright infringement under Australia law.
It makes clear that the mere provision of internet access by an ISP or intermediary is not of itself an authorisation of any infringing acts of the user.
In a practical sense, it means that ISPs are not required to contact customers or terminate their services as a result of notices from copyright owners.
