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
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
The ISP did not have power or control over its subscribers'
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
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