Don’t blame me! Authorisation of copyright infringement clarified

Don’t blame me! Authorisation of copyright infringement clarified - Griffith Hack

20 April 2012

Australia’s final appellate court, the High Court, has today handed down its decision dismissing an appeal by a number of film and television companies who had argued that the internet service provider, iiNet, had authorised infringement of copyright by its customers who had made the copyright owners’ works available online by using the BitTorrent peer-to-peer file sharing system.

The copyright owners argued that iiNet had the power to prevent its customers from infringing copyright in the films and television programs by issuing warnings and suspending or terminating customer accounts. Notices had been given to iiNet, on behalf of the copyright owners, setting out information about alleged past infringement by some of iiNet’s customers which, it was said, ought to have raised a reasonable suspicion on the part of iiNet that those acts of copyright infringement were continuing and that the failure of iiNet to take action, after having received such notices, amounted to authorisation of its customers’ copyright infringements.

The High Court has unanimously rejected the copyright owners’ contentions and, in so doing, held that iiNet had no direct technological means of preventing its customers from using the BitTorrent system to infringe copyright in the copyright owners’ films. The Court held that the sole extent of iiNet’s power to prevent customers from infringing copyright was limited to the indirect power to terminate the contractual relationship it had with those customers. Information about allegedly infringing conduct contained in the notices provided to iiNet was not, the High Court held, sufficient to provide iiNet with a reasonable basis to send warning notices to individual customers containing threats to suspend or terminate those customer’s accounts. It was therefore held that iiNet’s failure to act on the notices could not provide a sufficient basis to establish that iiNet had authorised any act of infringement of copyright in the copyright owners’ films by iiNet’s customers.

Importance of the Decision

Clearly, this is an important decision with far reaching practical consequences for internet services providers. It will, no doubt, come as a considerable relief to the ISP industry that they are not, as a matter of Australian law, deemed to be copyright policemen.

The decision is not, however, a universal panacea for the ISP industry. The decision is specific to the facts which were relevant to the issue of potential authorisation and in a situation with a different set of facts it is not inconceivable that there would be a different result.

For further information about this case or other issues of copyright law, please contact:
Wayne Condon, Principal
Email Wayne