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 anywhere in the world to proceed to both
hearing and judgment.
The case highlights the tensions between copyright
owners on one hand and ISPs on the other, with the key
issue being who should be responsible for protecting
copyright material in an online environment. It is a battle
that is being fought around the globe, with copyright
owners, ISPs and legislators grappling with the challenges of the new digital age. Given what is at stake, it
was no surprise the studios appealed the decision and in
that respect, the issues may still be some way from being
For now at least, we have conﬁrmation that in
Australia, ISPs in the position of iiNet do not have an
obligation to act as judge, jury and executioner when it
comes to the allegedly infringing conduct of their users.
An ISP who does no more than merely provide a
“precondition” for its users’ copyright infringement,
rather than the actual “means” of infringement, will not itself be liable for authorising copyright infringement,
even if the ISP does not disconnect the users after being
informed of allegedly infringing conduct.
On 20 November 2008, an alliance of 34 ﬁlm and
television studios (the studios) commenced proceedings
in the Federal Court for copyright infringement against
iiNet, one of Australia’s largest ISPs. The studios claimed that iiNet authorised its users’ infringement of the
copyright in their cinematograph ﬁlms under s 101 of
the Copyright Act.
The case concerned iiNet subscribers (being customers with whom iiNet had a contractual relationship) and other users of the iiNet service (being users with whom
iiNet did not have a contractual relationship)(together
users) downloading and sharing television show episodes and ﬁlms using the peer-to-peer protocol BitTorrent (the BitTorrent system), and follows the music industry’s successful action for illegal music ﬁle sharing in Universal Music Australia Pty Ltd v Sharman License