Internet Service Providers off the Hook?

Internet Service Providers off the Hook?

A landmark decision may have potentially absolved Internet Service Providers of any responsibility to stop illegal file-sharing amongst their users, but media companies are still looking for a solution.

Perth-based Internet service provider (ISP) iiNet, the third largest ISP in Australia, has defended proceedings brought against it by 34 media companies, including Village Roadshow, Universal Studios, Paramount Pictures, and Warner Bros.

The applicants’ claim

The applicants claimed that iiNet was liable for copyright infringement because it authorised its customers to access the Internet to use file-sharing programs to download movies and other media illegally.

The applicants attempted to prove that iiNet had failed to take the appropriate steps to stop illegal file-sharing by its customers and also breached copyright itself by storing and transmitting the data through its system.

The Australian Federation Against Copyright Theft assisted the applicants in their claim by employing a company known as DtecNet to investigate copyright infringement occurring by means of a peer-to-peer system, the BitTorrent protocol, by iiNet users.

“As far as I am aware, this trial, involving suit against an ISP claiming copyright infringement on its part due to alleged authorisation of the copyright infringement of its users or subscribers, is the first trial of its kind in the world to proceed to hearing and judgement,” said Federal Court Justice Dennis Cowdroy in his summary.

Did the iiNet users infringe copyright?

Justice Cowdroy found that some certain iiNet users had infringed copyright by making a film available online through the BitTorrent system and electronically transmitting the film through that system, a form of illegal file-sharing.

Did iiNet authorise the copyright infringement?

Although the judge found that iiNet had knowledge of the copyright infringements by their users occurring and did not act to stop them, the judge did not find that it authorised the infringements.

Justice Cowdroy said in his summary:

“Did iiNet authorise copyright infringement? The Court answers such question in the negative for three reasons: first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the Internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.”

The judge’s decision

Justice Cowdroy found that it was “impossible” to hold iiNet responsible for what its users did and highlighted that iiNet merely provided its users with access to the Internet.

The application was dismissed and the applicants were ordered to pay the costs of the respondent.

Implications of the decision

Anti-piracy advocates have said that the iiNet decision is a setback for the entertainment industry as the decision creates a precedent for ISPs to be viewed as conduits rather than as gatekeepers.

Chief executive of the Internet Industry Association, Peter Coroneos, said the main focus should be to provide legal media content to users online to create a “digital economy”.

Contact your local solicitor at Affinity Lawyers for advice on copyright infringement laws and how they might affect you.