High Court to Consider Liability of Internet Service Providers for Copyright Infringement of Users
John Wakefield, Partner and Mai Campbell, Solicitor
The High Court has granted leave to major Australian and Hollywood film production companies (represented by the Australian Federation Against Copyright Theft (AFACT)) to appeal the decision of the Full Federal Court in their long standing battle against an Australian internet service provider. AFACT are fighting to establish that iiNet, Australia’s second largest internet service provider, is liable for copyright infringement by their subscribers.
As readers will recall from our earlier report, AFACT originally commenced legal proceedings against iiNet in the Federal Court in Roadshow Films Pty Ltd v iiNet Limited. AFACT alleged that iiNet was liable for the copyright infringement by its customers who had illegally downloaded films through unauthorised file sharing on the Bit Torrent file sharing network. AFACT argued that iiNet was liable for authorising the infringement.
The landmark case was followed and tweeted by copyright holders, internet service providers and digital content users around the world. In handing down his decision, Justice Cowdroy of the Federal Court said that the internet service provider could not be said to have provided the means of infringement as the internet was only an access portal or a “necessary precondition” but not the actual “means of infringement”. Furthermore, iiNet was found not to have authorised the infringements as it did not take steps to encourage its customersto download copyright protected works.
That decision was appealed but, in the Full Federal Court, a 2:1 majority affirmed the view of Justice Cowdory, agreeing that iiNet was not liable for copyright infringement and did not authorise the infringement by its customers. It was considered that although internet service providers may still be liable for authorising infringement by users, this was not established on the facts of the case. It was found that iiNet did not have sufficient knowledge of the infringing acts. In the minority, Justice Jagot took the view that the because AFACT had issued notices of infringement to iiNet, it had sufficient knowledge of infringement and was required to take steps to prevent its infringing customers from downloading copyright works.
In the High Court Appeal, AFACT will claim that iiNet did have the requisite level of knowledge (as AFACT directly issued notices of infringement to the internet service provider) and therefore authorised the infringements. iiNet will no doubt continue to argue that despite having received notices of infringement by its customers, there is no obligation on internet service providers to police usage of the internet and the potential infringement activities of its subscribers.
It is hoped that the High Court Appeal will clarify the law in Australia on the liability of internet service providers for copyright infringement by their subscribers.
John Wakefield
Partner
T: +61 2 9390 8302
E: john.wakefield@holmanwebb.com.au