On 4 February 2010, the Federal Court of Australia gave its
highly anticipated judgment in Roadshow Films Pty Ltd v iiNet
Limited (No. 3)  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.
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
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.
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:
users did infringe copyright existing in the Films;
had knowledge of the infringement and did not stop the
infringement from occurring,
but that this did not mean that iiNet authorised the
infringements to occur.
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
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
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.
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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