[edit: for more analysis, see EFA Chair Nic Suzor's blog post: iiNet did not ‘authorise’; providing internet access is not providing the ‘means’ of infringement’; safe harbours are effective.]

And with one tweet, iiNet CEO Michael Malone announces the result that we've all been waiting for:

IiNet did not authorize the infringements #iitrial

More analysis will follow when the full written judgment is handed down, but it is apparent that the Judge was convinced that iiNet has no control over bittorrent and is not responsible for the acitons of its users in the circumstances alleged by AFACT. From the preliminary information available, this sounds like a decision that is absolutely consistent with the theory of secondary copyright liability developed in the US case of Sony v Universal: the lack of control over the system means that iiNet has no legal responsibility over its users, despite knowledge that some users are obviously infringing copyright. In terms of the decision in Moorhouse, iiNet could not be seen as 'approving, sanctioning, or countenancing' the infringing acts of its users. This decision seems to fill the gap with the Kazaa and Cooper decisions in Australia, which both found that the intermediary in question facilitated and encouraged the infringements that occurred.

This provides important certainty for ISPs in Australia: "the mere provision of access to internet is not the means to infringement". It also seems that more generally, this has important ramifications for innovation in Australia; in contrast with Kazaa, if you provide facilities that assist in infringement, but do not have control and do not act in bad faith, you will not be liable for secondary copyright infringement.

AFACT has been ordered to pay iiNet's costs. Expect an appeal, but this first instance decision seems quite strong in favour of iiNet.

Stay tuned for further analysis.

7 comments

  1. This is an important score for reason and sanity in Australia. Holding a provider responsible for its users' actions is not something we should encourage.

    Comment by NFG on 4 February 2010 at 8:14 pm
  2. Good to hear, I signed up to iiNet due in part to their stance on this issue.

    Comment by Corin on 4 February 2010 at 8:45 pm
  3. The argument against iinet was logically flawed to start with and it is great to see common sense applied in the decision. To show the stupidity of the argument AFACT was trumpeting, it would be the same as selling a person a gun, who then goes and shoots his wife. Is the gun seller at fault? Of course not. Another one, someone makes a thretening phone call are you going to hold Telstra liable for that too?

    Comment by Tim on 4 February 2010 at 8:51 pm
  4. Darn, And here I was looking forward to suing telstra for letting all the spam I recieve and find offencive for letting it some in over their internet infrastructure.

    Comment by Mathew on 4 February 2010 at 9:45 pm
  5. Phew. This was such a dangerous case. Glad common sense has prevailed.

    Comment by 5ynic on 4 February 2010 at 9:51 pm
  6. Good to see some common sense prevail. And thanks to iiNet for taking up the issue, its a good decision for the whole industry.

    But they'll probably sue electricity providers next.

    Comment by Simon on 4 February 2010 at 11:22 pm
  7. Very pleased.

    Comment by Josh on 5 February 2010 at 8:04 am