iiNet wins AFACT copyright case

The High Court of Australia in Canberra has dismissed an appeal by 34 film and television companies, led by Roadshow Films, against internet service provider (ISP) iiNet over alleged copyright infringement.

In its ruling, the High Court observed that iiNet had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs.

The High Court also found that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films.

“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 with its customers,” read a statement from the High Court.

The case dates back to 2009 when the media consortium took iiNet to court after claiming it had authorised users to download pirated material over the internet.

The Australian Federation Against Copyright Theft (AFACT), on behalf of the consortium served notices on iiNet alleging that its customers had infringed copyright in the appellants' films, and required iiNet to take action to prevent the infringements from continuing.

The High Court maintained the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers.

The original decision was dismissed in the Federal Court in Sydney on 4 February, 2010 by Justice Cowdroy.

In his ruling, Cowdroy said, "the mere provision of access to the internet is not an authorisation of infringement" and that the notification scheme proposed by AFACT, which included the possibility of account suspension or termination for repeat infringers, was not reasonable.

The consortium appealed to the Full Court of the Federal Court. The Full Court, by majority, dismissed the appeal.

The appellants were granted special leave to appeal to the High Court, where they argued that the majority of the Full Court had not correctly applied sections 101(1) and 101(1A) of the Copyright Act 1968.

More to follow

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