In brief - TV and film companies fail to snare iiNet
Internet service provider (ISP) iiNet is not guilty of copyright
infringement on the basis of file sharing by its users, according
to the Full Federal Court.
2010 iiNet decision
In February 2010, the Federal Court found that ISP iiNet was not
liable for copyright infringements by its customers. (Please see
our earlier article Hollywood studios lose to ISP iiNet in copyright authorisation
case for more information.) Justice Cowdroy held that
iiNet did not authorise the copyright infringements carried out by
its users, despite not taking steps to stop the infringing conduct.
His Honour found that because iiNet did not control the BitTorrent
system (a peer-to-peer file sharing system used for distributing
large amounts of data) which made the infringements
possible, it did not have the relevant power to stop the
infringements and therefore did not authorise them.
The appeal was dismissed by Justices Emmett and Nicholas,
with Justice Jagot in favour of the appeal. However, in
dismissing the appeal, Justice Emmett did not rule out the
liability of iiNet in the future, commenting that even though the
coalition of film and television companies which commenced the
proceeding are not entitled to relief in this proceeding, "it
does not follow that that is an end of the matter. It is clear that
the questions raised in the proceeding are ongoing. It does not
necessarily follow that there would never be authorisation within
the meaning of s101 of the Copyright Act by a carriage
service provider, where a user of the services provided by the
carriage service provider engages in acts of infringement such as
those about which complaint is made in this proceeding"
( FCAFC 23 at 274).
Consequently, internet service providers may be held to have
authorised primary acts of infringement on the part of users of
their services in the future.
It remains to be seen whether the film and television
companies will now appeal to the High Court.
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