Iinet Case Decision
Decision in iiNet case puts burden of policing online infringement back on copyright owners
Anita Cade and Lisa Ritson BLAKE DAWSON
Internet Service Providers (ISPs) across the country gave a collective sigh of relief when Justice
Cowdroy handed down his decision in the Federal Court of Australia on 4 February 2010 in the much-anticipated Roadshow Films Pty Ltd v iiNet Ltd decision.1 The case appears to be the first of its kind against an ISP anywhere in the world to proceed to both hearing and judgment.
IN BRIEF
This case confirms that internet service providers are not obliged to act as judge, jury and executioner when it comes to the allegedly infringing conduct of their users.
In assessing authorisation liability for copyright infringement, there is a distinction between providing the very
“means” of infringement and providing a mere “precondition” for infringement.
The decision represents a test case for ISP liability for copyright infringement in Australia. In particular, it was expected to be a test case for the application of the so-called “safe harbour” provisions of the Copyright Act
1968 (Cth) (Copyright Act), which have not been judicially tested since their implementation as part of the
Australia-US Free Trade Agreement in 2004. Ultimately, the court decided it did not need to make a final determination on the safe harbour issue. However,
Cowdroy J acknowledged the importance of the proceedings to the law of copyright in Australia, and possibly elsewhere, and considered that all submissions made and arguments raised ought to be decided to give certainty and finality to the litigation (pending any appeal). Accordingly, his Honour commented on the availability of the safe harbour provisions.
The proceedings attracted much media interest. It is thought to be the first Australian trial to be “twittered” or
“tweeted”, as approved by Cowdroy J. His Honour also noted that the case appears to be the first of its kind against an ISP
Anita Cade and Lisa Ritson BLAKE DAWSON
Internet Service Providers (ISPs) across the country gave a collective sigh of relief when Justice
Cowdroy handed down his decision in the Federal Court of Australia on 4 February 2010 in the much-anticipated Roadshow Films Pty Ltd v iiNet Ltd decision.1 The case appears to be the first of its kind against an ISP anywhere in the world to proceed to both hearing and judgment.
IN BRIEF
This case confirms that internet service providers are not obliged to act as judge, jury and executioner when it comes to the allegedly infringing conduct of their users.
In assessing authorisation liability for copyright infringement, there is a distinction between providing the very
“means” of infringement and providing a mere “precondition” for infringement.
The decision represents a test case for ISP liability for copyright infringement in Australia. In particular, it was expected to be a test case for the application of the so-called “safe harbour” provisions of the Copyright Act
1968 (Cth) (Copyright Act), which have not been judicially tested since their implementation as part of the
Australia-US Free Trade Agreement in 2004. Ultimately, the court decided it did not need to make a final determination on the safe harbour issue. However,
Cowdroy J acknowledged the importance of the proceedings to the law of copyright in Australia, and possibly elsewhere, and considered that all submissions made and arguments raised ought to be decided to give certainty and finality to the litigation (pending any appeal). Accordingly, his Honour commented on the availability of the safe harbour provisions.
The proceedings attracted much media interest. It is thought to be the first Australian trial to be “twittered” or
“tweeted”, as approved by Cowdroy J. His Honour also noted that the case appears to be the first of its kind against an ISP