Roadshow Films Pty Ltd v iiNet Limited: High Court Dismisses Copyright Infringement Appeal

In an eagerly awaited decision the High Court today (20 April 2012) in Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16 dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia (see  Roadshow Films Pty Ltd & Ors v iiNet Limited [2011] FCAFC 23). The High Court found that the respondent ISP (internet service provider) iiNet had not authorised the infringement by its customers of the appellants' copyright over commercially released films and television programs.  

Background

The appellants were 34 Australian and US companies who between them either own or exclusively license the copyright in many commercially released films and television programs. iiNet (the respondent) provides internet services to its customers under an agreement which requires that "the services not be used to infringe others' rights or for illegal purposes".

The users of iiNet’s internet services infringed copyright in the appellants' films by making them available online using BitTorrent a peer-to-peer online file sharing system. Australian Federation Against Copyright Theft (AFACT) acting for the appellants, served notices on iiNet alleging iiNet's customers infringed copyright in the appellants' films and requiring iiNet to take action to prevent infringements from continuing. iiNet took no action in response to these notices. At first instance, the Federal Court held that iiNet had not authorised infringements by its customers in the appellants' films. The Full Court of the Federal Court dismissed an appeal by the appellants.  

In the High Court

After gaining special leave to appeal, the appellants argued that the Full Court had not correctly applied Copyright Act 1968 (Cth) ss 101(1), (1A) which provisions make authorising an action comprised in a copyright (without the licence of the owner of the copyright) an infringement of the copyright. The provisions also set out the matters which must be taken into account in determining whether a person has authorised such action.

It was argued by the appellants that iiNet had the power to prevent its customers from infringing copyright in the films by issuing warnings and suspending or terminating customer accounts. The appellants argued that AFACT notices provided credible information of past infringements by iiNet's customers sufficient to raise a reasonable suspicion that infringements were continuing. Once iiNet received this information its failure to take action amounted to authorisation of its customers' infringements.  

The decision

The High Court unanimously dismissed the appeal observing that iiNet had no direct technical power to prevent its customers from using the BitTorrent to infringe copyright. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship. The Court also held that the information contained in the AFACT notices did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customer’s accounts.

As a result the High Court held it could not be inferred from iiNet's inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the films by its customers.

However, while one battle has gone the way of the ISPs, the war does not appear to be anywhere near over as the Sydney Morning Herald seems to imply:

“But copyright law experts say the case is not the end of the story as more ISPs could be targeted in future and pressure will remain on internet providers to do something about piracy on their networks. The AFACT is already pressuring the government to change copyright laws to crack down on piracy.”

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