Tag Archives: iiNet; authorisation; copyright

Some updates

So I have fallen a bit behind in my promised extended discussion of the iiNet case. I’m halfway through the full judgment, but have unfortunately been sidetracked with some other work-related tasks.

There has been no shortage of interesting copyright judgments in the last week. In addition to the iiNet decision, there has been the decision of Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 (where the band Men At Work was found to have infringed Larrikin’s copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’, by using the flute riff in their famous ‘Down Under’ song), and on Monday, in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44, a single judge of the Federal Court held that copyright does not subsist in Telstra’s Yellow Pages and White Pages directories (choosing to follow IceTV rather than Desktop Marketing).

These are all important decisions, and I have every intention of getting to them (for reading and blogging in detail) as soon as I can. In the meantime, if you are interested in reading some updates and discussions, I’d recommend viewing Nic Suzor’s blog on the iiNet decision (1, 2, and 3) and Warwick Rothnie’s post on the Telstra decision.

iiNet prevails in Federal Court

Justice Cowdroy of the Federal Court today handed down his judgement in the Roadshow Films Pty Ltd v iiNet case.

The case involved a number of film studios who had sued iiNet, an internet service provider, for authorising the copyright infringement of its users. Their argument was that some of iiNet’s users were infringing copyright by downloading movies and TV shows via a BitTorrent service; that iiNet knew this was going on; and that iiNet failed to do anything about it. The question for the court was whether iiNet was authorising the copyright infringement of its users by failing to take any steps to stop the infringing conduct.
In a decision that has been celebrated all over the internet this morning (especially Twitter), Justice Cowdroy held that iiNet was not authorising copyright infringement. The Justice gave three reasons his decision:
  1. the infringements occurred as a result of use of the BitTorrent system, not the internet, and iiNet did not control the BitTorrent system;
  2. iiNet did not have a relevant power to prevent the infringements occurring; and
  3. iiNet did not sanction, approve or countenance copyright infringement.
In the summary of his judgement (which I have had the good fortune of reading), Justice Cowdroy made the following important statement: “I find that the mere provision of access to the internet is not the ‘means’ of infringement”.
The judge found that a scheme for notification, suspension and termination of customer accounts is not a relevant power to prevent copyright infringement pursuant to s 101(1A)(a) of the Copyright Act. The judge’s reasons for this finding are set out in the main judgement, which I have not yet had a chance to read. I hope to do this later today and provide updated comments shortly.
Justice Cowdroy also found that iiNet did have a repeat infringer policy that was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions of the Copyright Act. However, because the judge found that iiNet did not authorise infringement, iiNet did not need to rely on the safe harbours.
Nic Suzor, Associate Lecturer in the Faculty of Law at QUT and Chair of Electronic Frontiers Australia has further comments and analysis here and here.
I think this is a fantastic result and I am happy that common sense has triumphed.
The main judgement is available here. It is almost 200 pages. Happy reading!
(Updates will follow once I have read the full document myself)