Piracy, downloading films online and breaches of copyright – the case of Roadshow Films Pty Ltd v iiNet Limited (No 3) attracted worldwide attention and with the subject matter involved it is not surprising.
34 applicants including big players such as Warner Bros Entertainment, Disney Enterprises, Universal Pictures (Australia) and Twentieth Century Fox brought an action alleging that iiNet (an Internet Service Provider) authorises ‘infringement of copyright of its users or subscribers when they download cinematography films in a manner which infringes copyright.’
Justice Cowdroy dismissed the application finding that iiNet did NOT authorise the copyright infringements’ and this was for three key reasons:
- The copyright infringements occurred directly as a result of the use of the BitTorrent system and not by use of the internet itself;
- iiNet did not have the power to prevent the copyright infringements from occurring;
- iiNet did not ‘sanction, approve or countenance’ copyright infringement.
Essentially, because iiNet was merely an Internet Service Provider and did not provide the ‘means’ of infringement and because iiNet did not sanction the infringement, they could not be held liable for the actions of those who engaged in the illegal action.
This is one of the first, if not the first case worldwide to test and hear this issue. Internet Service Providers everywhere undoubtedly breathed a sign of relief when judgment was handed down on 4 February 2010.
The case was appealed by Roadshow Films but the appeal was dismissed by the Full Federal Court on 24 February 2011. The decision was not unanimous however. While Justice Emmett and Justice Nicholas agreed, in separate judgments, that the appeal should be dismissed, Justice Jagot came to the conclusion that the appeal should be allowed. Justice Jagot came to this conclusion on the basis that:
- the infringements were proven;
- iiNet authorised the acts constituting the infringements;
- iiNet is not entitled to rely on provisions in the Telecommunications Act or the safe harbour provisions in the Copyright act to defend of limit itself from liability.
Further, Justice Emmett sated that:
“It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements.”
So while the decision stands for now, and while internet service providers everywhere can breathe a sigh of relief, the questions has to be asked, how long it will be before these providers will be challenged again? Or, if this task seems too difficult, who will the film companies target next?
ANDREA CARNUCCIO
Solicitor
