ISPs Off the Hook – For Now
06 November 2012
A landmark Federal Court decision handed down in early February has ruled that internet service providers are not liable for copyright infringements that occur when people use their service to download film and television content.
The Federal Court found that the ISP iiNet had not authorized the infringement of the copyright of major film and television industry players, despite having knowledge of infringements occurring and not acting to stop them.
Allens Arthur Robinson intellectual property partner Andrew Wiseman said that the decision was a significant win for ISPs and a huge disappointment for copyright content owners.
“This decision is, in a sense, a continuation of a line of legal rulings regarding the use of technology,” Wiseman said. “Simply put, this decision is akin to saying that merely selling a photocopier is not infringing copyright, but having that photocopier available to copy material for commercial gain is.”
Wiseman said the issue of copyright infringement by ISPs was a huge one for the entertainment industry and he expected the studios involved to appeal. “However, Justice Dennis Cowdroy has indicated in his decision that ultimately any changes to this law may come out of Canberra rather than through the courts.”
The proceedings were brought by a coalition of film and television industry players against iiNet, an Australian ISP. They claimed that iiNet authorized copyright infringement by failing to prevent its customers from peer-to-peer file-sharing of infringing copies of movies and television programs, despite having been notified that such activities were occurring on its network.
iiNet argued that it should not be required to terminate an account merely on the basis of an assertion by a copyright owner that a breach has occurred and has accused the film studios of trying to 'outsource' their copyright enforcement to ISPs.
