Justice Cowdroy found that the provision of internet access by iiNet was not the “means” of infringement. Conroy said in response to iiNet as having “no idea if any customers are illegally downloading music” that this defence was “stunning” and “a classic”. What was the iiNet case all about? Outside of Megaupload, there have only been a few cases that have dealt with authorisation in relation to copyright infringement in New Zealand, and our Courts have not yet had to consider the liability of an ISP for the peer-to-peer activity of its customers. But is this the case? In a sharp rejection of this submission, Justice Cowdroy held at — To this end, ISPs are often easier to identify than the individual who will post or send infringing material and they provide a convenient point at which to block that material. What might happen in the future?

Submissions closed this month. Users, not ISPs liable for copyright infringement after iiNet decision. Retrieved 4 February This article was first published in NZ Lawyer, May edition. Accordingly, iiNet did not ‘authorise’ infringement under the Copyright Act It was possible to warn a customer that an infringement, by use of the service provided to that customer, had been detected. AJ Park’s Illustrated Plainly:

By using this site, you agree to the Terms of Use and Privacy Policy. Film industry vs ISP iiNet”.

To paraphrase, the factors are:. As a result of this outcome, the court has set a precedent stating that ISPs are not responsible for what their users do with the services the ISPs provide them.

With ISPs becoming increasingly dependent on the monetising of legal content, they are gradually coming to appreciate that their commercial interests may be best served by protecting copyright.

The studios then appealed to the High Court, which heard the case late last year, and which delivered its unanimous decision in two separate judgments on 20 April Accordingly, iiNet did not ‘authorise’ infringement under the Copyright Act In the short-term, the decision clearly strengthens the position of the ISP industry in Australia and, to a large degree, the industry here in its negotiations with the content industry in respect of any voluntary industry-based agreement to counter online copyright infringement.

In the end, then, the real importance of this case in the medium to long-term is to serve as a catalyst towards an appropriate legislative change to address the problem of widespread online copyright infringement in the age of peer-to-peer technology.

They must have some avenues to enforce their rights. Retrieved 20 October Rudd non-committal on copyright law change chances. Legislative reform may well be needed. The majority held that if authorisation occurred, iiNet was not protected by the “safe harbour” provisions. The Full Court expressed that ISPs should be “cautious” before acting on detailed information provided by other parties apart from the party to the customer relationship agreement CRA where notices produced are above the quality of unreliable allegations of copyright infringement.


Roadshow Films Pty Ltd v iiNet Limited [] HCA 16 – Lexology

The cases that have dealt with the question of authorisation include: Hence it would be unreasonable for iiNet to take action to prevent primary infringements. The decision does serve as a reminder that the internet is not an entirely anonymous landscape, as many users presume it to be.

The trial court delivered judgment on 4 Februarydismissing the application and awarding costs rosdshow iiNet. Timothy Webb acted for the Internet Industry Association in relation to the proceedings when heard by the Federal Court.

Conroy said in response to iiNet as having “no idea if any customers are illegally downloading music” that this defence was “stunning” and “a classic”. Retrieved 6 October ISP wins, studios to pay costs”. In addition, the Court considered relevant to the question of control, the fact that, even if the ISP had exercised its power to terminate user accounts, a customer could move to another service provider with relative ease and continue infringing copyright.

The alleged offence needs to be pursued by the police and proven in the courts. Retrieved 15 October The case against iiNet was filed on 20 November While the decision is a win for iiNet, the High Court emphasised that the test for authorisation is largely a question of fact, and left lttd the possibility that an ISP could be held liable for the copyright-infringing activities of ppty customers in other circumstances. This turns on two key sections of the Copyright Act Cth: We are also part of the Trans-Pacific Partnership Agreement negotiations and are under pressure to accede to so-called ‘stronger’ intellectual property laws, including repeat infringer Internet termination and a strengthened graduated response system.

Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16

While the iiNet decision is not binding on a New Zealand Court, given the similarity between the relevant sections of the Australian and New Zealand Acts, the legislative intent behind our Act, and a desire to more closely align our laws with those of our trading partners, the case will be highly persuasive.


The AFACT has welcomed the Internet Industry Association’s IIA development of an industry code of practice to guide courts on what actions internet intermediaries such as ISPs or other content hosts should undertake in response to copyright infringement claims. The Court rejects the attack on the credit of Mr Malone. Mr Malone was an impressive witness who remained consistent for the most part in the evidence he gave during three days of gruelling and unnecessarily hostile cross-examination.

Worldwide, there is a move to place responsibility for infringement occurring over networks with ISPs. Summmary ISP industry’s bargaining position in its negotiations with the copyright content industry will have been strengthened, and this will no doubt affect the extent of the obligations placed on ISPs and the sharing of costs in respect of any voluntary industry-based response in both countries.

Retrieved 4 February If so, a failure to control activities could mean the ISP is deemed to have authorised the infringing conduct.

Views Read Edit Flims history. However, having reviewed the Act and relevant case law both in New Zealand and overseas, the following principles can be extracted, whereupon an ISP arguably ought to be found liable for authorisation for the activities of its customers notwithstanding section 92B: New Zealand is no exception to this general movement, as it is one of the founding countries in the new ACTA Anti-Counterfeiting Trade Agreementand has recently enacted new legislation entailing a graduated response system fimls what has been termed the ‘three strikes legislation’.

Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. The majority held that it was unreasonable for iiNet to act on AFACT’s request for iiNet to suspend or terminate certain services given that AFACT had not provided sufficiently credible, verifiable and cogent evidence. Justice Jagot inferred that iiNet was liable for authorising primary infringements. summaey

Get in touch information is loading. Sabiene Heindl, the general manager for the copyright enforcement arm of the music industry, MIPI, has stated that as a result of this case, MIPI has no choice but to sue individual copyright infringers directly. Full Court of the Federal Court of Australia.

How does the decision affect ISPs?