Friday, April 20, 2012

iiNet High Court Case Dismissed

The Australian High Court has today handed down its decision in the iiNet copyright case, dismissing the appeal and holding that the ISP, iiNet, did not authorise copyright infringement. The case concerned the use of BitTorrent to download and share films under copyright.

The appellants, AFACT, contended that: "iiNet's technical and contractual relationship with its customers gave it the indirect power to control the use of its services – that is, to prevent continuing primary infringements (through warnings, suspension of services and termination of contractual relations)..." [at 58]  "[T]he appellants' case on authorisation ultimately was that iiNet could not avoid secondary infringement unless it implemented a system designed to achieve the removal of infringing material by iiNet customers from the BitTorrent clients on those customers' computers..." [at 59].

iiNet argued however, "that authorisation cannot be determined on the basis that particular factors – such as knowledge or a power to prevent – are either present or absent. Rather, iiNet relied on the language of s 101(1A) and emphasised that each of those factors is a matter of degree, and that a court must consider the extent to which each factor exists before determining whether a person's 'inactivity or 'indifference, exhibited by acts of commission or omission, [has reached] a degree from which authorization ... may be inferred'". [at 61] 

With respect to the technical aspects of the BitTorrent protocol, the court held: "It is important to note that iiNet has no involvement with any part of the BitTorrent system and therefore has no power to control or alter any aspect of the BitTorrent system, including the BitTorrent client. Further, iiNet is not a host of infringing material, or of websites which make available .torrent files relating to infringing material[72]. iiNet does not assist its customers to locate BitTorrent clients or .torrent files by any indexing service or database entries[73]. It cannot monitor the steps taken by users of its internet services under the BitTorrent system, it cannot directly prevent users of its internet services from downloading a BitTorrent client or .torrent files, and it cannot identify specific films to which users of its internet services seek access. Once infringing material is stored on a customer's computer iiNet cannot take down or remove that material, and cannot filter or block the communication of that material over its internet service. Nor has iiNet any power to prevent its customers from using other internet services – and, as noted earlier, several users of an internet service may share an IP address. Whilst the relationship between iiNet and its customers involves the provision of technology, iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants' films on that customer's computer with the result that the appellants' films were made available online in breach of s 86(c)." [at 65]

The court noted that the information provided to iiNet from AFACT regarding breaches of copyright was not of a standard sufficient to support civil proceedings and that iiNet could have been held to be in breach of contract by its customers had it terminated their accounts. [at 75] Furthermore, iiNet's lack of activity following the receipt of the information from AFACT about copyright breaches did not demonstrate the degree of indifference required to give rise to authorisation. iiNet was unwilling to act because of the risks associated with taking action solely on the basis of information provided by AFACT and was under no obligation to employ staff or conduct further investigation itself. [at 76]

This was a unanimous decision.

Further Reading
Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16 (20 April 2012) 

Australian Copyright Council, Landmark Judgment on Authorisation of Copyright Infringement (20 April 2012) < > at 20 April 2012

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