3 March 2011 Appeal dismissed - Full Federal Court confirms that iiNet is not liable for infringements by its use


In brief - TV and film companies fail to snare iiNet

Internet service provider (ISP) iiNet is not guilty of copyright infringement on the basis of file sharing by its users, according to the Full Federal Court.

2010 iiNet decision

In February 2010, the Federal Court found that ISP iiNet was not liable for copyright infringements by its customers. (Please see our earlier article Hollywood studios lose to ISP iiNet in copyright authorisation case for more information.) Justice Cowdroy held that iiNet did not authorise the copyright infringements carried out by its users, despite not taking steps to stop the infringing conduct. His Honour found that because iiNet did not control the BitTorrent system (a peer-to-peer file sharing system used for distributing large amounts of data) which made the infringements possible, it did not have the relevant power to stop the infringements and therefore did not authorise them.

Hollywood studios appeal the 2010 decision

The 2010 decision was appealed by a consortium of companies including Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney. On 24 February 2011, the Full Federal Court handed down its decision in Roadshow Films Pty Limited & Ors v iiNet Limited [2011] FCAFC 23.

The appeal was dismissed by Justices Emmett and Nicholas, with Justice Jagot in favour of the appeal. However, in dismissing the appeal, Justice Emmett did not rule out the liability of iiNet in the future, commenting that even though the coalition of film and television companies which commenced the proceeding are not entitled to relief in this proceeding, "it does not follow that that is an end of the matter. It is clear that the questions raised in the proceeding are ongoing. It does not necessarily follow that there would never be authorisation within the meaning of s101 of the Copyright Act by a carriage service provider, where a user of the services provided by the carriage service provider engages in acts of infringement such as those about which complaint is made in this proceeding" ([2011] FCAFC 23 at 274).

Consequently, internet service providers may be held to have authorised primary acts of infringement on the part of users of their services in the future.

It remains to be seen whether the film and television companies will now appeal to the High Court.

For further information, please contact Swaab Attorneys​.

Co-authored by M Hall.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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