Why the court ruled for iiNet

Why the court ruled for iiNet

Summary: Justice Cowdroy today handed iiNet a sound victory in the Australian ISP's long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers.

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Justice Cowdroy today handed iiNet a sound victory in the Australian ISP's long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers.

iiNet court case

iiNet chief Michael Malone (Credit: iiNet)

The studios first dragged iiNet (and its chief executive Michael Malone, pictured) into the Federal Court back in November 2008, arguing that the ISP infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers copying films and TV shows over its network.

However, in a packed courtroom in Sydney today, Justice Cowdroy said he found that iiNet did not authorise the infringement of the studios' copyright.

"The mere provision of access to the internet is not an authorisation of infringement," he said.

Cowdroy made it clear that the means of infringing the studios' copyright was the use by iiNet customers of the BitTorrent file-sharing system. "iiNet has no control over BitTorrent," he said.

The judge added that the notification scheme proposed by the studios and their representative, the Australian Federation Against Copyright Theft (AFACT), for ISPs to notify their customers of a breach of copyright and take action such as suspending or terminating their accounts was not a reasonable process.

While the judge noted that his reasons for making the finding were "complicated and lengthy", they hinged on the idea that iiNet had done no more than provide an internet service to its users.

This differed from the previous Kazaa case, Cowdroy said, in that the Kazaa organisation was encouraging its users to breach copyright.

Cowdroy noted separately that the Telecommunications Act would not have prevented iiNet from acting on the AFACT notices of infringement, as iiNet had claimed. However, he noted that this fact did not end up being relevant to the case as iiNet did not authorise a breach of copyright.

Similarly, Cowdroy noted iiNet did have a repeat infringer policy for its customers, and would have been entitled to shelter under the "safe harbour" provisions of the Copyright Act. However, similarly, as iiNet did not authorise the infringement of copyright, this was not relevant to the case.

Ultimately, Cowdroy concluded that there was enough evidence to show widespread copyright infringement occurring "worldwide". However, he said this cannot necessitate or compel a finding of authorisation of infringement of copyright in the case, and said the infringements of copyright were "significantly" less than AFACT had alleged.

The justice also found that when ISP customers used BitTorrent to download copyrighted material, they were making one copy only of the material. In addition, he pointed out BitTorrent itself could be used for legitimate purposes.

Cowdroy ordered that the studios' application be dismissed and that they pay iiNet's legal costs.

Topics: Piracy, Government AU, Legal, Security, Telcos

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5 comments
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  • Golf clap for Justice Cowdrey

    to paraphrase some of hte headlines this morning "Law and commonsence agree"
    Perhaps Justice Cowdrey saw some of the multitudes of blogs and forum postings suggested if iiNet was liable, so were countless other parties including power companies, computer manufacturers, backhaul providers and other vigareously linked parties.
    .. or maybe he's just a smart guy.

    I fear however this is but round 1 of a longer drawn-out fight.
    anonymous
  • Very nice

    "Cowdroy ordered that the studios' application be dismissed and that they pay iiNet's legal costs."

    Now we know who is taking away revenue from the artists - and it aint the pirates.
    anonymous
  • Blondie vs EMI

    Blondie took EMI to court over failure to pay royalties, and won. Now Blondie is it's own Company which LEASES its music to Sony BMI.

    The days of the Media Corporations bullying the artists and public are coming to a close and they know it.
    anonymous
  • yep.

    ...and as more people start turning to buying music online rather that stores then the distribution companies will... wait, there wont be any more need for these over-bloated middle men.

    Perhaps we should have a minute silence.
    anonymous
  • "Cowdroy ordered that the studios' application be dismissed and that they pay iiNet's legal costs."

    Mad sick for sure. Serves AFACT right for trying to attain a legal power that they should not ever be allowed to have. Much love for iinet for taking the moral high ground here, and not simply supplicating.

    Just out of interest, how much did iinet's legal costs amount to?
    MassLulz