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 [2011] 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.


  1. "But it is equally true that more was required to effect the infringements, being the BitTorrent system over which the respondent had no control."

    So, once Conroy's VOLUNTARY censorship scheme is in place AFACT will have a basis to launch a new attack. If ISPs can CHOOSE to censor what Conroy wants then they must both have the ability to censor BitTorrents and must be CHOOSING not to do so.

    Comment by Womp on 24 February 2011 at 17:09
  2. Have you actually read the judgement? These are quotes taken from the trial judge which were referenced by the appellant judges and disposed of....


    I've had a scan though some of it, and IANAL, but it doesn't bode well for the ISPs. I would be happy with this judgement if I were the MAFIAA.

    Comment by VDWeere on 24 February 2011 at 17:16
  3. The iiNet appeal decision is available on BarNet's JADE service which provides links to the legislation and earlier decisions:

    Comment by jadeplatform on 24 February 2011 at 18:46
  4. @VDWeere: I've edited to be clear we're quoting the original judgement. The appellate judges (two of them) agreed with Justice Cowdroy's conclusion regarding bittorrent, without adding much new there. We're still going over the decision, and will comment in more detail if there's anything particularly interesting that differs from that original conclusion. The justices indicated here that they disagreed with Justice Cowdroy's reasoning in some cases, they came to the same conclusion regarding authorisation.

    Comment by efa_oz on 24 February 2011 at 21:41
  5. @efa_oz: Pardon the ignorance - can you point to the parts where the appellant judges agree with the determination on that point?

    The only judge to refer to this part specifically was Jagot, and she sides with AFACT. The other two judges did not explicitly deal with this paragraph, suffice to say, they upheld there was no authorisation, but for very different reasons, not because of the "nature of the BitTorrent system".

    In fact, all 3 judges are of the opinion that this is not the end of the case, and explicitly envisage instances where the ISP would be liable, and what rights holders would have to do......

    Comment by VDWeere on 25 February 2011 at 03:34
  6. @efa_oz: I've done my best to understand this judgement and have read it through twice - there's also been a lot of learned people commenting on the outcome. David Brennan from Uni Melb, for example who are now voicing their doubts on the verdict and stating that this may indeed be a "Hollow win".

    My understanding is that iiNet sailed through by the skin on their teeth by sheer virtue the notices were not explained to them.

    The Judges, majority and dissenting all stated it was entirely reasonable for an ISP to disconnect its customers on notification of infringers by rights holders.

    I may be completely wrong here, but can you enlighten me?

    IANAL, but if I was, I would ask that paragraphs 1, 2 & 4 be stricken from the record, because they appear, with the benefit of having read the judgement, to be based on a wish, not fact.

    Comment by VDWeere on 25 February 2011 at 19:17