Roadshow Films Pty Ltd v iiNet Limited (No. 3) (Federal
Court of Australia, 4 February 2010)
In a landmark copyright decision handed down earlier this month,
the Federal Court of Australia dismissed an application by a group
of 34 major film studios against Australian internet service
provider iiNet Limited for infringement of copyright in a large
number of cinematograph films.
The case is understood to have been the first trial in the world
which looked at the issue of whether an internet service provider
("ISP") is liable for the copyright
infringement of its subscribers and therefore attracted significant
In the case, the film studios alleged that a number of iiNet
subscribers infringed copyright by sharing and downloading films
and television programs using the online peer-to-peer file sharing
network BitTorrent and that by failing to take any steps to prevent
or stop the infringing conduct, iiNet authorised those
infringements. Under the Copyright Act 1968, a person who
authorises the infringement of copyright is treated as if they
themselves infringed copyright directly.
Whilst the evidence in the case established that a number of
iiNet subscribers had infringed copyright and that iiNet knew of
the infringements, the Court held that iiNet did not authorise
them. The Court drew a distinction between providing the
"means" of infringement, which would amount to
authorising the infringement, and merely providing a
"precondition" to infringement occurring.
The Court found that the provision of an internet service by an
ISP, like the provision of electricity by an energy company, is a
precondition to infringement. In the same way that an energy
company is not responsible for how its customers use the
electricity, the Court held iiNet to not be responsible for how its
subscribers used the internet. The direct means by which
infringement of the film studio's copyright occurred was the
subscribers' use of the BitTorrent system, not the use of the
internet, and because of this iiNet was held not to have authorised
the copyright infringements.
Whilst the case is clearly a win for ISPs, it should also be
seen a positive outcome for all Australian internet users,
including those who engage in illegal file sharing and those who do
not. If the Court had held that iiNet authorised infringement, ISPs
would have been required to actively police and take steps to
prevent its subscribers from engaging in infringing conduct. The
costs involved in establishing and implementing such measures are
significant and would inevitably have been passed on to the end
user, resulting in an increase in the cost of internet access for
all, including legitimate users of the internet.
In terms of the fight against internet piracy, the decision is
obviously disappointing for the film studios particularly as the
evidence in the case established that online copyright infringement
is widespread and occurring on a large scale. If the film studios
are unable to succeed on appeal, they, together with the music and
other entertainment industries, will be left with no choice than to
claim hollow victories in individual claims against individual
copyright infringers or to lobby the Federal Government to
introduce legislative reform imposing additional responsibilities
on ISPs. Whereas the battle against online piracy is one thing, the
introduction of additional legislation requiring ISPs to police
what their subscribers do with their internet services, together
with the Federal Government's controversial proposal to
introduce a web filter to "censor" what Australians can
view on the internet, would have unintended consequences for
legitimate users of the internet and be a step in the wrong
The film studios have until 25 February 2010 to lodge an appeal
to the full court of the Federal Court of Australia.
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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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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