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(Feb 12, 2010) On February 4, 2010, in what is being called a "landmark judgment" that has possible international ramifications, the Federal Court of Australia ruled against a number of major Hollywood film studios in finding that an Internet service provider (ISP) was not liable for the copyright breaches of its customers. The judge noted that the case was the first of its kind in the world to proceed to hearing and judgment. Given the widespread public interest in the case, the judge had granted permission for the trial to be "tweeted" – the first time that this had occurred for an Australian case. (Asher Moses, iiNet Slays Hollywood in Landmark Piracy Case, THE SYDNEY MORNING HERALD, Feb. 4, 2010, available at http://www.smh.com.au/technology/technology-news/iinet-slays-hollywood-i
n-landmark-piracy-case-20100204-ndwr.html
.)

The case was lodged in November 2008 by a total of 34 applicants, with support from the Australian Federation Against Copyright Theft (AFACT), and alleged that ISP iiNet Ltd had breached Australian copyright laws by allowing nearly 100,000 illegal film, television, and music downloads through the BitTorrent file-sharing protocol over a 59-week period. (iiNet 'Allowed 100,000 Dodgy Downloads', ABC NEWS, Oct. 6, 2009, available at http://www.abc.net.au/news/stories/2009/10/06/2706096.htm.) The applicants claimed that iiNet had failed to take reasonable steps to combat copyright infringement and took no action in response to notifications that its customers were engaging in the infringing conduct. (Roadshow Films Pty Ltd v. iiNet Limited (No. 3) [2010] FCA 24 (Feb. 4, 2010), ¶¶ 12-13, available at http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html.)

iiNet, which had a practice of forwarding infringement notices issued by studios to the police but not to customers, argued that it "cannot disconnect a customer's phone line based on an allegation. The alleged offense needs to be pursued by the police and proven in the courts. iiNet would then be able to disconnect the service as it had been proven that the customer had breached our Customer Relations Agreement." (Susan Tindall, iiNet to Fight Entertainment Industry, ZDNET.COM.AU, Nov. 21, 2008, available at http://www.zdnet.com.au/news/communications/soa/iiNet-to-fight-entertainment-industry/0,130061791,339293427,00.htm?omnRef=http://en.wikipedi
a.org/wiki/AFACT_v_iiNet
.)

In a nearly 200-page judgment, the judge found that "iiNet is not responsible if an iiNet user chooses to make use of [BitTorrent] to bring about copyright infringement," and that "[t]he law recognizes no positive obligation on any person to protect the copyright of another." (Summary, Roadshow Films Pty Ltd v. iiNet Limited, supra, at ¶¶ 19-20.) In summarizing the judgment, the judge said that the critical question was whether iiNet "authorized" copyright infringements by failing to take any steps to stop the infringing conduct.

The Court answers such question in the negative for three reasons: first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement. (Id.at ¶ 21.)

The judge further stated that "[t]he mere provision of access to the internet is not the 'means' of infringement." (Id. at ¶ 12.)

The applicants have been ordered to pay the legal costs of iiNet. AFACT said that it will review the decision before deciding whether to appeal. (Moses, supra.)

Author: Kelly Buchanan More by this author
Topic: Intellectual property More on this topic
Jurisdiction: Australia More about this jurisdiction

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Last updated: 02/12/2010