LIABILITY OF INTERNET SERVICE PROVIDERS FOR AUTHORISATION OF COPYRIGHT INFRINGEMENT

Liability of Internet Service Providers for Authorization of Copyright Infringement

Liability of Internet Service Providers for Authorization of Copyright Infringement

Introduction

The Federal Court has found in favour of internet service provider (ISP) iiNet Limited (iiNet) in a matter brought against it by several major film and television studios and also involving the Australian Federation against Copyright Theft (AFACT).

The Federal Court has found in favour of internet service provider (ISP) iiNet Limited (iiNet) in a matter brought against it by several major film and television studios and also involving the Australian Federation against Copyright Theft (AFACT)

A foremost issue of the proceedings is whether an ISP, by not taking steps to stop infringing conduct by some its users, thereby authorises the copyright infringement of these users (Abreu 2001). The importance here is that under the copyright act, a person authorising copyright infringement is viewed in the same way as a person directly infringing copyright and subject to the same penalties.

Discussion

34 major film studios and their licensees in Australia ('the applicants') (by and with support from The Australian Federation Against Copyright Theft (AFACT)1)) brought action against iiNet ('the respondent'), the third largest internet service provider (ISP) in Australia, for authorising copyright infringement.

The applicants are the copyright owners of a number of cinematograph films. The applicants alleged that the copyright in their films had been infringed by illegal downloading and sharing of the films via a BitTorrent (or peer-to-peer (P2P)) network by subscribers of iiNet (Andersson 2001). The applicants notified the respondent of this alleged infringing behaviour by a series of notices identifying the conduct and the IP address from which it originated. The applicants asked the respondent to take action against the relevant subscribers, by issuing warnings and terminating accounts. The respondent took no such action, and as a result, the applicants alleged that the respondent was authorising the copyright infringements.

In particular, the applicants “alleged that the respondent knew or had reason to suspect that the iiNet users were engaged in, and were likely to continue to engage in, such conduct; took no action in response to notifications sent on behalf of the applicants which claimed that iiNet users were engaging in the conduct referred to above; offered encouragement to iiNet users to engage in or to continue to engage in the conduct; failed to enforce the terms and conditions of its Customer Relationship Agreement ('CRA') by which its internet services were provided; continued to provide services to those subscribers who were engaging in the conduct complained of; and through the respondent's inactivity and indifference, permitted a situation to develop and continue whereby iiNet users engaged in such conduct (AMS-IX Membership 2004).”

Justice Cowdroy goes through the evidence in this case in a great deal of detail. In doing so, he rejected the applicants' attacks on the credibility of Mr. Malone, CEO of iiNet. He says at [135]: “The Court rejects the submission that Mr Malone 'like iiNet itself, has been compromised by his extreme views ...