The Australian Federal Court has refused to find an internet service provider (ISP) liable for the illegal downloading of files by its customers. In Roadshow Films Pty Ltd v iiNet Limited (no 3) [2010] FCA 24, a collection of film industry owners sued iiNet in a landmark case that attempted to hold the ISP liable for the admitted acts of downloading movies using the BitTorrent network.
Justice Cowdry found that iiNet had knowledge of infringements occurring, and did not act to stop them. However, his honour stated that "such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users". Further, his honour specifically held that: "The law recognises no positive obligation on any person to protect the copyright of another."
Whilst the evidence established that copyright infringement of the applicants' films was occurring on a large scale, it was iiNet's customers that were liable. His honour found that: "An ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright. It is only by means of the application of the BitTorrent system that copyright infringements are enabled, although it must be recognised that the BitTorrent system can be used for legitimate purposes as well. iiNet is not responsible if an iiNet user chooses to make use of that system to bring about copyright infringement."
As a result of this judgement, it will be very difficult for the film industry to hold facilitators liable for infringement and it will be necessary for the industry to litigate against individual customers instead.
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| Peter Treloar |
Shelston IP
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Australia
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