Appeal dis­missed — Full Fed­er­al Court con­firms that iiNet is not liable for infringe­ments by its use

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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.

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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, 20^th 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.