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The show’s over in Roadshow Films v iiNet
On 20 April 2012, the High Court handed down its judgment in Roadshow Films Pty Ltd v iiNet Ltd, ending the 4 year copyright battle between internet service provider iiNet and 34 Australian and US film studios.
At issue was whether iiNet’s failure to prevent its customers from infringing the film studios’ copyright in their movies and TV programs (through BitTorrent) constituted ‘authorisation’ of the infringement. The High Court was unanimous in deciding that it did not.
Back in 2008, the Australian Federation Against Copyright Theft, on behalf of the film studios, began sending notices to iiNet alleging copyright infringement by iiNet’s customers. iiNet did not take any action over these notices. The film studios then sued in the Federal Court alleging that iiNet had authorised the infringements.
The Federal Court at first instance found in favour of iiNet, holding that there was no authorisation. The studios appealed to the Full Federal Court but iiNet was successful again. The studios then appealed to High Court which has now finally determined that iiNet was not liable. No further appeal is possible.
The High Court decision
In the High Court appeal, the studios contended that iiNet had the technical and contractual power to prevent infringement (by suspending or terminating its customers’ internet access) and its failure to use this power in the face of infringement notices from AFACT amounted to authorisation.
All five High Court judges disagreed with the film studios, holding that:
- iiNet did not have direct power to prevent infringement as it had no control over its customers’ use of the BitTorrent system,
- iiNet’s power was limited to an indirect power to prevent infringement by suspending or terminating its customers internet accounts,
- the information contained in the AFACT infringement notices was insufficient to give iiNet a reasonable basis for warning customers or suspending or terminating their accounts.
Where to now
It is clear that the High Court’s decision does not mean an ISP will never be taken to have authorised infringement by their customers. The Court left open the possibility that where the information provided by the copyright owner is sufficient, an authorisation allegation may be substantiated.
Of course, the High Court did not set out precisely what would constitute sufficient information. Interestingly, in the Full Federal Court decision, Justice Emmett did suggest that a copyright owner would have to provide near conclusive evidence of infringement (and the means by which the evidence was derived), would need to undertake to reimburse the ISP its costs for investigating the infringement allegations and would need to agree to indemnify the ISP for any liability arising from wrongfully suspending or terminating a customer’s account.
The High Court did make clear that the existing legislative framework had been overtaken by advances in technology and could not be easily applied to widespread infringements occasioned by peer-to-peer sharing. It appears the next step will be legislative reform of the Copyright Act and / or agreement on an industry code of practice.
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