The ongoing issue of whether or not an internet service provider
("ISP") authorises copyright
infringement when its customers illegally download films, is now a
step closer to being resolved.
Last year the case of Roadshow Films Pty Ltd v iiNet
Ltd saw Roadshow Films (together with 33 other major film
production companies from the USA and Australia) bring an action
against the internet service provider iiNet, with the assistance of
the Australian Federation Against Copyright Theft
In this case, the Federal court of Australia had to consider
whether or not iiNet 'authorises' copyright infringement by
allowing its customers to use the internet service they provide to
According to Justice Cowdroy, the "critical issue in
this proceeding was whether iiNet, by failing to take any steps to
stop infringing conduct, authorised the copyright infringement of
certain iiNet users". In the law of authorisation there
must be a distinction between the "provision of the
'means' of infringement compared to the provision of a
'precondition' to infringement occurring". In
other words, just providing a way in which people can download
films versus actively creating a situation in which it will
It was found that iiNet had not infringed copyright by simply
providing access to the internet because that was not the
"means" for infringing copyright. Rather, the
"means" for the infringement was through the
BitTorrent system something which iiNet has no control over.
In this case it was found that iiNet had not authorised any
copyright infringement by its customers.
Roadshow Films, and the other production companies, then
launched an appeal against the decision. The full Federal Court
dismissed the appeal again on the basis that iiNet did not
authorise its customers infringements. However, this time the
decision produced a mixed result because it was found that an ISP
could be found liable for authorisation if it did not take
action in suspending or terminating a customer's account if
sufficient information was provided through an
'infringement notice' issued by the copyright
Such information should include:
informing the ISP, in writing, of particulars of the acts of
infringement of copyright through use of IP addresses of
requesting, in writing, that the ISP inform the customer of the
allegations, invite the customer to respond and also set out other
certain warnings and information;
providing unequivocal evidence to the ISP that infringement of
the copyright occurred through use of the service in question and
should include enough information to enable the ISP to verify the
accuracy of the allegations; and
an undertaking by the copyright owners to:
reimburse the ISP for its reasonable costs for verifying the
information and for establishing a process whereby the ISP can
monitor the internet use;
indemnify the ISP for any liability it reasonably incurred from
mistakenly suspending and/or terminating a customer's account,
based on allegations from the copyright owner.
In this particular case the Court noted that points 1 and 2 were
satisfied by notices sent by AFACT. However the requirement under
point 3 simply included assertions with no means of verification.
In relation to point 4 the copyright owners had not offered to
reimburse iiNet for any costs incurred in complying with the
demands in the infringement notices.
Even though iiNet won the appeal it certainly does not mark the
end of the matter. On 24 March 2011, the Applicants filed an
application for special leave to appeal to the High Court of
Australia..... watch this space for further developments!
The result of the initial appeal case has however brought
further clarity regarding the question of authorisation and the
steps that an ISP should take to address copyright infringement by
customers, if provided with sufficient information.
The world is now watching as the result of the High Court
proceedings may shed even more light on the complex issue of
copyright infringement in Australia and overseas.
For more information on this case please contact Delvene Michael
at Coleman Greig on ph 02 9635 6422 or email
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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