Previously cited as "", Roadshow Films Pty Ltd v iiNet Ltd (commonly known as AFACT v iiNet or the iiTrial) concluded with a unanimous decision from the Australian High Court ruling that the iiNet, an internet service provider, was not liable for copyright infringement from BitTorrent peer-to-peer file-sharing.
The , filed on behalf of the appellants, thirty-four Australian and American companies that either own or exclusively license the copyright in thousands of commercially released films and television programs. The respondent, iiNet, is . The case began nearly four years ago in November 2008, when AFACT alleged that iiNet’s conduct in ignoring repeated requests to disconnect users said to be involved in illegal content swapping constitutes authorization of copyright infringement. In response, iiNet asserted that AFACT was asking them “” despite their failure to provide adequate evidence. The High Court agreed, noting that (para. 138) used to obtain the information on their notices to the ISP. iiNet further claimed that ”
Three questions, largely of fact, determined the outcome of this case. First, whether iiNet had the power to prevent primary infringements committed through BitTorrent use. Second, whether reasonable steps, such as warnings and suspension or termination of infringing accounts, were taken to prevent these infringements. And lastly, whether and to what extent the relationship between iiNet and its customers have bearing on these questions.
The Court observed that while the relationship between iiNet and its customers involved the provision of technology, iiNet had no direct power to prevent primary infringements through technical power and could only ensure that result indirectly by terminating customer contracts. Furthermore, the inaction from iiNet resulting from AFACT’s notices was not due to indifference but rather unwillingness to act based solely on information provided from AFACT.
The case at hand demonstrates a significant departure from what Matthew Rimmer called a “” concerning authorization of copyright infringement. Indeed, a host of earlier cases found intermediaries liable. In Telstra Corp v Australasian Performing Right Association , the High Court held Telstra, a telecommunications carrier, directly liable for the playing of music by its subscribers to their clients despite the fact that Telstra had no control over the content of the music played.
Similarly, in Universal Music Australia Pty Ltd v Cooper , Tamberlin J held that the proprietor of a website that provided links to music files on other websites was liable for authorizing copyright infringement. Tamberlin J also considered whether the “safe harbour provisions” introduced by the could apply to ISPs. Section 29(b)(iv)(D) requires that the service provider was “” Since the ISP in question did not act expeditiously, Tamberlin J concluded that the safe harbour scheme could not apply to the website’s ISP even if AUSFTA had been inducted at the time of the infringements.
iiNet had submitted safe harbour defences, which would have been successful at the trial level had authorization of infringement been found, but were later dismissed by the Full Court, stating that iiNet had not satisfied the conditions necessary to attract the benefits of the provision.
The results of Roadshow Films Pty Ltd v iiNet Ltd also departed from another High Court ruling, University of New South Wales v Moorhouse (interestingly, a decision considered but not followed in CCH Canadian Ltd. v. Law Society of Upper Canada ) where the failure by a university to exercise supervision over photocopying in their library amounted to authorization of copyright infringement. The facts in Moorhouse were distinguishable because “” (para. 61).
The response iiNet CEO Michael Malone imparted was quite conciliatory. "" he said. ""
In contrast, AFACT began last December.
Nancy Situ is a JD candidate at Osgoode Hall Law School.