Today the High Court affirmed the lower Courts’ decisions and has found iiNet not liable for copyright infringement.
The key issue that the High Court decided was whether an ISP could be liable for copyright infringements of its users, in circumstances where the ISP had been provided with notice of infringing activity by way of notices of copyright infringement from movie studios.
The decision was unanimous in favour of iiNet.
This case against iiNet was filed in 2009 by a group of international and Australian film companies including Roadshow Australia and Universal Pictures. iiNet is a large Australian ISP.
The film companies alleged that iiNet’s customers had been engaging in numerous copyright infringements of their films and television programs by downloading copies of them, without a licence, via iiNet’s network using third party P2P file sharing software called BitTorrent.
The film companies had contracted with a company called DtecNet to collect information about the activities of iiNet’s customers on its network and the film companies used this information to issue notices of copyright infringement to iiNet on a weekly basis for many months in the lead up to the proceedings being filed.
The key issue in the case was authorisation of copyright infringement (s101(1A) of the Australian Copyright Act) and whether iiNet should have taken steps to prevent its customers from infringing the film companies’ copyright.
On 4 February 2010, Justice Cowdroy of the Federal Court found that iiNet was not liable for copyright infringement. The film companies appealed this decision, and in February 2012 the Full Federal Court confirmed on a 2:1 basis (Emmett and Nicholas JJ, Jagot J dissenting) that iiNet was not liable.
The film companies appealed to the High Court and the appeal was heard in November 2011.
In today’s decision, all 5 High Court Judges found that iiNet did not have a direct power to prevent its customers from infringing copyright. Although iiNet had an indirect power to terminate its contractual agreement with its customers should they be in breach, this was not enough to amount to authorisation of the users’ infringing conduct. From a practical perspective, even if the customer was cut off from iiNet, the customer could easily turn to another provider and continue the same activity.
Important factors that the Court took into account included that iiNet did not provide the BitTorrent software or host the files that were shared.
The court also found that it was not reasonable to expect iiNet to issue warnings or suspend or terminate its customers’ accounts on the basis of the information provided in the AFACT notices.
Thus, iiNet did not authorise the copyright infringements of its customers.
The decision assures telecommunications providers and ISPs that provide a standard internet access service to their customers that they can continue to operate on a usual basis.
However, where an intermediary has a direct technical power to prevent copyright infringements by their customers, the result may be different. Internet intermediaries such as YouTube and Facebook, who control the software that operate their systems and have the ability to remove infringing files made available by the customer may be in a different position to iiNet.
Copyright owners have one less option when enforcing their copyrights. This decision makes it very difficult for copyright owners to bring proceedings against ISPs, even if detailed notices of infringement are served on the ISP.
Who does this affect?
Rights’ owners, telecommunication providers and Internet intermediaries such as YouTube and Facebook.