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Feb 10

iiNet wins piracy court case (Roadshow Films Pty Ltd v iiNet Ltd)

An important Australian case was decided today by the Federal Court. iiNet, Australia’s 3rd largest ISP behind Telstra and Optus, was sued by 34 parties – mostly movie industry companies. iiNet, like any ISP, had customers who were pirating movies (via BitTorrent). Australia’s Copyright Act has provisions which impose secondary liability on people who “authorise” the infringement of copyright. If iiNet was held to be guilty of authorising such infringement, they would be liable as if they had pirated the movies themselves. So, there was a lot on the line for iiNet. This was bet-the-company-level litigation (and, in some ways, bet-the-industry litigation).

In a typically lengthy 600+ paragraph judgment, the Court ruled in iiNet’s favour.  The SMH has a decent report on the case. I’m sure there are academics preparing blog posts which are far more erudite and analytical, but I have excerpted the main points from the summary of the judgment:

[The Issue] This proceeding raises the question whether an internet service provider or ISP authorises the infringement of copyright of its users or subscribers when they download cinematograph films in a manner which infringes copyright. In Australian copyright law, a person who authorises the infringement of copyright is treated as if they themselves infringed copyright directly.

[Reasoning] Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.

Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to s 101(1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy, and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.

Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

Notably, even if iiNet was entitled to the safe harbour protections (because it had the “three strikes” scheme of notification/suspension/termination in place), iiNet did not even need to rely on it because it wasn’t guilty of authorising infringement in the first place.

Big win for ISPs – had the judgment gone against iiNet, not only would they all been exposed to a huge amount of liability, but the burdens on them to ensure that this sort of thing didn’t happen again would be weighty indeed.

Two other paragraphs of note are (emphasis added):

This proceeding has attracted widespread interest both here in Australia and abroad, and both within the legal community and the general public. So much so that I understand this is the first Australian trial to be twittered or tweeted. I granted approval for this to occur in view of the public interest in the proceeding, and it seems rather fitting for a copyright trial involving the internet.

That this trial should have attracted such attention is unsurprising, given the subject matter. As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgment.

This is, of course, a trial judgment, and the applicants may appeal.

  9:12pm  •  Law  •   •  Tweet This  •  Add a comment