The Federal Court has found that iiNet did not authorise any copyright infringement by its users who access BitTorrent systems to download copyright works – film and television programs.
This morning, Justice Cowdroy of the Federal Court in Sydney handed down his judgment in Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24. iiNet is Australia’s third-largest internet service provider (ISP).
In his summary provided this morning, Justice Cowdroy stated, ‘An ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright.’
The key issue was whether iiNet, by failing to take steps to stop infringing conduct, had authorised the infringing acts by its users for the purposes of Australian copyright law. As set out in the summary handed down by the court today, Justice Cowdroy found that iiNet had not authorised the infringements for the following reasons:
- the infringing acts by iiNet users occurred directly as a result of use of BitTorrent systems (essentially peer to peer downloads) which iiNet neither created nor have any control over. The mere provision of access to the internet is not the ‘means’ of infringement
- iiNet did not have the requisite power to prevent users from carrying out the infringing acts, and
- ultimately, iiNet did not ‘sanction, approve or countenance copyright infringement’.
In his summary, Justice Cowdroy pointed out that this case is particularly significant, being, as far as he is aware, one of the only cases of its kind in the world to go to hearing and judgment. Justice Cowdroy also noted that the decision will be a disappointment for the 34 applicants (constituted by some of the largest film studios in Australia and the USA) and for the Australian Federation Against Copyright Theft (AFACT) which has assisted the applicants in the claim. Justice Cowdroy himself acknowledged that online copyright infringement is occurring at an increasing rate on a worldwide scale. In his summary, Justice Cowdroy pointed out that copyright law in Australia does not place a positive obligation on any person to protect the copyright of another. According to the Federal Court of Australia, iiNet is not responsible for the choice a user makes to access BitTorrent systems to bring about copyright infringement.
25 February update – appeal lodged
On 25 February, the applicants lodged an appeal against the decision of the Federal Court. The details of the Full Federal Cout hearing have yet to be released.
This article was written by Claudia Adams, Solicitor and Kristin Stammer, Partner, Sydney.
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