Hollywood v ISP – iiNet not liable for authorising copyright infringement by its customers

April 2012 Authors: Cameron Harvey, Kasia Dyjak

Contacts

This morning, the High Court handed down the much awaited decision in the appeal between Roadshow Films Pty Ltd & Ors and iiNet Limited.  

In essence, Roadshow together with a number of film and television companies which own copyright in film and television programs (Appellants) alleged that iiNet, an internet service provider (Respondent), authorised infringement of the Appellants' copyright by failing to prevent its customers from sharing the copyright works on the Internet using the BitTorrent peer-to-peer file sharing system. The Appellants argued that the Respondent had the power to prevent its customers from infringing the Appellants' copyright by issuing warnings and suspending or terminating customer accounts once the Respondent received notices from the Australian Federation Against Copyright Theft (AFACT) alerting it to the infringement.

At first instance and on appeal to the Full Court of the Federal Court the Respondent was held not liable for authorising copyright infringement.  The Appellants sought leave to appeal to the High Court.

In a unanimous decision, the High Court dismissed the appeal.  The High Court held the Respondent not liable for authorising copyright infringement for the following reasons:

  • the Respondent had no direct technical power to prevent its customers from using the peer-to-peer file sharing system (and thus from infringing the Appellants' copyright), rather it only had an indirect power to terminate the contractual relationship with its customers; and
  • the information contained in the AFACT notices did not provide the Respondent with a reasonable basis for threatening to suspend or to terminate customer accounts.

A more detailed alert will be issued shortly analysing reasons for the decision.