iiNet Wins! AFACT Has To Pay. Australian Court Says ISPs Not Responsible For Infringing Users

from the good-news dept

Another victory for common sense. Down in Australia, we've covered the lawsuit filed by movie studios against popular ISP iiNet. The studios were upset that iiNet wasn't doing enough to stop unauthorized access to movies by its users. iiNet took a very strong pro-consumer stand, and pointed out that it had no reason to act as the movie studio's personal police force:
They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.
The company claimed further that based on Australian law, its customers actually weren't violating copyright law in trading files directly, since the law only covered distributing content "publicly" and a one-to-one trade is not "public." Furthermore, it argued that the studios' demand that it monitor its customers activities would violate Australia's telecom act and violate users' privacy rights.

Not surprisingly, a lot of folks have been waiting for the verdict and it's in! The court has ruled in favor of iiNet, saying that just because it provides access, it does not mean it is a party to infringement. Not only that, the court has told AFACT, the Australian anti-piracy organization that handled the case, that it needs to pay iiNet's legal fees. The ruling looks fantastic. Some snippets from the ITnews article linked above:
"I find that iiNet simply can't be seen as approving infringement," said Justice Cowdroy.

Justice Cowdroy found iiNet users had infringed copyright by downloading films on BitTorrent, but he found that the number of infringers was far less than alleged by AFACT.

More importantly, Justice Cowdroy said that the "mere provision of access to internet is not the means to infringement".

"Copyright infringement occured as result of use of BitTorrent, not the Internet," he said. "iiNet has no control over BitTorrent system and not responsible for BitTorrent system."

The fact worldwide piracy was rife "does not necessitate or compel a finding of authorisation, just because it is felt there is something that must be done", he said.
This is a huge victory for those who believe that the efforts by copyright holders to push secondary liability on ISPs is a very dangerous policy. It's great to see the court get this one right.

Filed Under: australia, copyright, isps, secondary liability, studios
Companies: afact, iinet


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  1. identicon
    Anonymous Coward, 3 Feb 2010 @ 9:43pm

    Purveyors of BT clients at this time may not be particularly enamored with the decision as it seems to suggest they may bear some measure of liability under Australian law. It is not clear the extent to which this potential liability may apply to BT trackers.

    It was surprising to see the numerous references to US statutory and case law. Ask most lawyers in the US about Justice Ginsburg's recent reference to relying in part on foreign cases and you will most likely receive a "What the H*** is she thinking? No way!".

    Re attorney fee awards, Australia, unsurprisingly, follows what is known as the "English Rule", i.e., the loser pays. This is not the law in the US except in very limited circumstances.

    I was also quite surprised to see what appears to be the general structure of a lower court opinion in Australia. It makes US court decisions appear sparse and succinct in comparision.

    Finally, like any court case opinions are rendered based upon the evidence presented and how that evidence stacks up against what is required by law. Quite possibly a second ISP in any future litigation might not be as fortunate as this ISP.

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