Friday, February 25, 2011

Roadshow v iiNet

For those that havent yet caught up the Full Court of the Federal Court of Australia has determined that iiNet are not responsible for the infringement on their networks. In a strong statement for ISP independence in this country the court held that simply providing the infrastructure of the internet does not mean that ISPs are liable for the actions of their users. The court writes [Emmett J at 257]:

...while the evidence supports a conclusion that iiNet demonstrated a dismissive and, indeed, contumelious, attitude to the complaints of infringement by the use of its services, its conduct did not amount to authorisation of the primary acts of infringement on the part of iiNet users. Before the failure by iiNet to suspend or terminate its customers’ accounts would constitute authorisation of future acts of infringement, the Copyright Owners would be required to show that at least the following circumstances exist:
  • iiNet has been provided with unequivocal and cogent evidence of the alleged primary acts of infringement by use of the iiNet service in question. Mere assertion by an entity such as AFACT, with whatever particulars of the assertion may be provided, would not, of itself, constitute unequivocal and cogent evidence of the doing of acts of infringement. Information as to the way in which the material supporting the allegations was derived, that was adequate to enable iiNet to verify the accuracy of the allegations, may suffice. Verification on oath as to the precise steps that were adopted in order to obtain or discern the relevant information may suffice but may not be necessary.
  • The Copyright Owners have undertaken:
    • to reimburse iiNet for the reasonable cost of verifying the particulars of the primary acts of infringement alleged and of establishing and maintaining a regime to monitor the use of the iiNet service to determine whether further acts of infringements occur, and
    • to indemnify iiNet in respect of any liability reasonably incurred by iiNet as a consequence of mistakenly suspending or terminating a service on the basis of allegations made by the Copyright Owner.
This is not a unanimous decision and is likely to be appealed - in particular there was much discussion as to whether iiNet had actually implemented its policy with respect to infringing activity and dispute as to whether the safe harbour applied. Stay tuned for the next episode.

Further Reading
Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 (24 February 2011) < > at 25 February 2011

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