The Federal Court of Australia released its important decision in Roadshow Films Pty Ltd v. iiNet Limited regarding the liability of Internet service providers (ISPs) for acts of copyright infringement by their subscribers. The court sided with the ISP, ruling that iiNet was not authorizing their subscribers' infringement of the plaintiffs' movies and TV shows.
In order to prove that iiNet was authorizing copyright infringement, the plaintiff movie studios had to first prove that a primary infringing act was occurring using iiNet's Internet service, and second demonstrate that iiNet had authorized those infringements. The court ruled that the plaintiffs had succeeded in proving primary infringement but had failed to prove that those infringements were authorized by iiNet.
In ruling that iiNet subscribers had violated the plaintiffs' copyrights in the downloaded movies, the court ruled that copying a media file over the BitTorrent network infringes the creator's right to reproduce the work and the right to transmitting that work to the public, both of which are exclusive rights under Australia copyright law. Furthermore, seeders and peers in a BitTorrent swarm who make files available over the BitTorrent network are infringing the creators' rights to make their works available. The court also decided that liability for transmitting a work over the BitTorrent network was not affected by the fact that the majority of seeders and peers in the BitTorrent swarm were located outside of Australia.
On the issue of authorization, the court found that iiNet was not liable for authorizing these infringing acts of their subscribers. The judge drew a distinction with Kazaa, another famous Australian file-sharing case, finding that unlike the creators of file-sharing software, the ISP is not providing a "means" to infringe. The court concluded that it was the BitTorrent sites and BitTorrent network, rather than the ISP itself, that was providing iiNet's subscribers with the means to infringe the movie studios' copyright. Simple knowledge of the infringing acts by the ISP was not found to constitute an implicit authorization of those acts.
The court also found that iiNet's policy to deal with subscribers who are repeat copyright infringers was sufficient for the ISP to qualify under Australian copyright law safe harbour provisions for innocent intermediaries.
McCarthy Tétrault Notes
In the end, the Federal Court of Australia ruled in iiNet's favour for three principal reasons:
- It was the BitTorrent network rather than the ISP that was providing the end-users with the "means" to reproduce the works.
- The ISP did not have power or control over its subscribers' infringing acts.
- The ISP could not be said to have "sanctioned, approved or countenanced" the end-users' infringement to the same extent as the providers of the BitTorrent service or the defendants in Kazaa.
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