The decision handed down today by the Full Court of the Federal Court of Australia in the “iiNet Appeal” ( Roadshow Films Pty Limited v iiNet Limited  FCAFC 23 (24 February 2011) – online here) is very important in securing the rights of internet users to due process in relation to allegations of copyright infringement and also in protecting Internet Service Providers (including Government departments, Schools, Universities and coffee shops) from liability for any copyright infringements by users of the service.
While the case may still be appealed to the High Court, the majority decision of the Full Court to reject the copyright owners’ assertion that ISPs “authorise” copyright infringement by not blocking peer-to-peer traffic is a landmark for Australian law and a valuable precedent for other countries’ ISPs faced with the same question.
The judgment is not a free pass for ISPs. The Court said that the actual infringing acts of the users of the Internet service could be closely examined to establish whether an authorisation existed on the facts – in this case, not established but theoretically possible. Justice Nicholas was especially critical of iiNet’s “repeat infringer” policy, noting that the ISP hadn’t really tried to stop alleged infringers. Justice Jagot noted that the ISPs hadn’t achieved an industry code to trigger “safe harbour” protections and in the event that an authorisation of infringement was proved then ISPs would not have the benefit of those protections in the Copyright Act. Justice Jagot would have allowed the appeal on the facts and asserted that there was no factual difference between iiNet's role and other infringement cases.
However, the other two judges were satisfied that the “means” of copyright infringement by the users of an ISP service was BitTorrent, not “the Internet” - in the words of the original judgement,
For the abovementioned reasons, the court finds that it is not the respondent, but rather it is the use of the BitTorrent system as a whole which is the “means” by which the applicants’ copyright has been infringed. The respondent’s internet service, by itself, did not result in copyright infringement. It is correct that, absent such service, the infringements could not have taken place. But it is equally true that more was required to effect the infringements, being the BitTorrent system over which the respondent had no control.
EFA congratulates iiNet on an important win, and compliments the company for putting up a strong defence against copyright owners in a context where – worldwide – Internet companies and legislators have buckled under industry pressure.