This is a short note on the Full Federal Court’s February 2011 decision in Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23.

In this important decision comprising 807 paragraphs with three counsel on each side, the Full Federal Court upheld the first instance decision of February 2010 (Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24).

In both decisions iiNet, an internet service provider (“ISP”), was held to be not liable for any copyright infringing activities of its customers who used BitTorrent, a peer to peer software for sharing digital files.

BitTorrent can be used to download files, including films and other works subject to copyright. The claimants against the ISP included Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney.

Justices Emmett and Nicholas dismissed the appeal by the claimants, while Justice Jagot was in favour of their appeal.

The court disagreed with key aspects of the first instance decision. The court found that an ISP that chooses to ignore a sufficient notice from a copyright holder could subsequently be liable for authorising infringement. However the court agreed with the first instance decision in maintaining the distinction between an ISP’s provision to users of access to the internet verses the use of software and the internet by users to conduct copyright infringing activity.

The key provision of the Copyright Act, section 101, relates to infringement arising in the event a person can be said to have authorised the breach of copyright.

In the appeal court’s view an ISP could be found to have authorised the activities of its users in situations, for example, whereby the copyright holder provides the ISP with notifications which contain sufficient details of the purported offending activity and the ISP subsequently takes no action. The court also found that iiNet’s unwritten policy for terminating repeat infringers (if ordered to do so by the court) does not protect iiNet against a claim for damages.

As this decision is not being viewed as creating a safe harbour for ISPs there are a number of ongoing events. For example, the Internet Industry Association (which mostly represents ISPs) has subsequently announced plans to develop a code of practice for “internet intermediaries”. The Association is also requesting expanded safe harbour provisions under the Copyright Act beyond carriage service providers and inclusive of users of social media and networks.

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Noric Dilanchian