High Court Rules ISP Is Not Liable For Copyright Infringement By Its Users
Today the High Court unanimously dismissed an appeal against Australian ISP iiNet, holding that it did not authorise the copyright infringement of its users.
This decision is the end of long legal battle by AFACT and a number of copyright owners (mostly Hollywood movie studios), who claimed iiNet was liable for authorising its customer’s copyright infringement over BitTorrent.
This decision confirms, for the third time, that an ISP will not be liable for authorising the copyright infringement of its users merely because the ISP does not cancel the customer’s internet connection on an allegation by a copyright holder.
Many internet users download movies and music through peer-to-peer technology such as BitTorrent. The way the BitTorrent protocol works, every user who downloads a file, simultaneously uploads portions of that file to other users, allowing all downloaders to obtain a copy of the file faster than if they attempted to download the file from a single source. It was not disputed that users were infringing copyright in their use of BitTorrent (although the court noted that not all BitTorrent activity is infringing). The key issue in this case was whether the ISP was liable for the actions of its users.
Specific Factual Background
While the decision may have broader scope for service providers, it is important to note that:
- iiNet did not provide, control or alter the BitTorrent system or client;
- iiNet was not hosting infringing material;
- iiNet was not linking or indexing .torrent / infringing files;
- iiNet cannot directly prevent customers from accessing .torrent files;
- iiNet cannot filter network traffic;
- iiNet cannot stop a customer going to another service provider;
- iiNet was not bound by an established industry code of conduct (none yet exists).
What Do I Need To Do?
Rightsholders still have substantially broad opportunities to protect their copyright, but copyright owners cannot expect ISPs to enforce their copyright for them.
However, the judgement did not specifically address anyone other than ISPs. For other intermediaries and service providers – bloggers, website owners, businesses that host data and so on – the situation is less clear, and this case does not absolve everyone.
For example, if you are directly hosting data for clients, and a rightsholder claims that one of your clients is using your system to infringe copyright, then your position may be different from iiNet’s. If (unlike iiNet) you have direct control over the data/access/user actions, then it may still be arguable that you are in some way ‘authorising’ your client’s infringement of copyright, if you fail to take any action.
It may be possible to pass some responsibility back onto your users through appropriate terms and conditions, but this will depend on your particular circumstances.
French CJ, Crennan and Fiefel JJ held at : “iiNet’s power was limited to an indirect power to prevent [infringement] by terminating the contractual relationship”, and consequently “iiNet’s inactivity after receipt of the AFACT notices did not give rise to an inference of authorisation…”
Gummow and Hayne JJ similarly held at : “In truth, the only indisputably practical course of action would be an exercise of contractual power to switch off and terminate further activity on suspect accounts”.
Gummow and Hayne JJ also addressed iiNet’s ‘inaction’ and ‘indifference’ to the infringements, and held at : The leap from ‘inaction’ and ‘indifference’ to the accepted common law definition of Authorisation of ‘sanction, approve and/or countenance’ was too long a stretch.
Where To From Here?
As this exhausts their opportunity to appeal, AFACT have indicated they will now lobby government to change copyright laws.