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) < http://www.copyright.org.au/news-and-policy/details/id/2060 > at 20 April 2012

iiNet goes to the High Court

News recently that the High Court in Australia has given leave to appeal the iiNet case. This case concerns the liability of ISPs in this country for copyright infringement. The case turns on whether the ISPs authorised the illegal file sharing by failing to disconnect users that engaged in such activity.

Further Information
Australian Copyright Council, High Court to hear appeal in iiNet case (12 August 2011) < http://www.copyright.org.au/news-and-policy/details/id/1992 > at 16 August 2011

AFACT, IINET CASE: FILM STUDIOS SEEK LEAVE TO APPEAL TO THE HIGH COURT (24 March 2011) < http://afact.org.au/pressreleases/2011/24-3-2011.html > at 16 August 2011

iiNet goes to the High Court

News recently that the appeal by AFACT of the iiNet decision is likely to be made to the High Court of Australia on 12 August 2011. There is a further date of 2 September 2011 in case this date does not happen. It will be interesting to see whether the High Court grant leave to appeal - it is likely to take some time to get to trial if this is granted so dont expect any changes soon.

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) < http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/23.html > at 25 February 2011