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High Court confirms iiNet not responsible for customer copyright infringement

On 20 April 2012, the High Court brought an end to the long running battle between Roadshow Films (and others) and iiNet.

In something of a David and Goliath showdown, in November 2008 a coalition of 34 Australian and US entities(including major international studios and television networks), representing the owners and/or exclusive licensees of the copyright in thousands of films and television programs, commenced copyright infringement proceedings against internet service provider iiNet.

In 2008, the Australian Federation Against Copyright Theft (AFACT) had issued a number of notices to iiNet that, amongst other things, identified alleged instances where iiNet customers had used the file sharing software BitTorrent to “illegally” download movies and television programs.

The copyright owners and licensees claimed that iiNet, in not subsequently warning and/or cancelling the accounts of the “infringing” customers, had effectively authorised the ongoing copyright infringement that arose from its customers’ use of BitTorrent.

iiNet successfully defended the proceedings in the Federal Court of Australia. iiNet was also successful in a subsequent Full Court appeal brought by the Australian and US entities.
The content owners then appealed the matter to the High Court. In a unanimous 5-0 decision, the High Court found that iiNet had not authorised, or otherwise been a party to, any copyright infringement that may have been commitment by iiNet customers using BitTorrent to download movies and television programs.

A key element in the High Court’s reasoning was that iiNet had no control over BitTorrent or the use of BitTorrent by its customers. The High Court confirmed that all that iiNet provided to customers was access to the internet – iiNet could not control what its customers did from there.

The High Court also reasoned that even if iiNet had cancelled the accounts of the infringing customers, it was open to those individuals to sign up with another ISP and continue their use of BitTorrent.  As a result, any enforcement action taken by iiNet against customers would be time consuming, expensive and ultimately was unlikely to prevent further copyright infringement.

The question of how to ensure that Intellectual Property rights of content owners are protected on the internet continues to be a difficult one to address. While many interesting cases on the issue continue to be decided around the world, it appears that until such time as governments legislate and/or a unified, global agreement is adopted, these waters will remain murky.

Luke Mitchell

luke.mitchell@surrypartners.com.au