iiNet wins in copyright appeal case (AFACT v iiNet) – April 22, 2012

On 20 April 2012 the High Court of Australia handed down its decision in the “iiTrial” between Australian Federation Against Copyright Theft (a group of 34 movie studios and TV production companies) and Australian Internet service provider iiNet.

The main question on appeal to the High Court was whether iiNet “authorised” its users’ copyright infringment by not sending warning notices to customers and not stopping them from any infringing use of Internet file-sharing tools and services.

The Court found that the copyright infringement notices issued by AFACT members to iiNet were merely allegations of infringing behaviour and did not satisfy the civil standard of proof (at [75]). The notices “did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts” (at [78]). The Court dismissed the appeal by a 5-0 verdict and ordered AFACT to pay iiNet’s costs in the High Court hearings.

A number of experts and commentators have posted their thougths on the High Court’s decision, and as such I do not propose to canvas the case here. Some suggest that copyright rights holders would call on legislators to amend the Copyright Act 1968 (Cth), continue to press for an industry code including a “three-strikes” rule, or start legal action against content hosts (such as YouTube) and possibly even end-users.

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In 2010, justice Cowdroy of the Federal Court held that iiNet did not “authorise” alleged copyright-infringing activities by iiNet’s customers (see Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24). In February 2011 justices Emmett, Jagot and Nicholas of the Federal Court of Appeal upheld justice Cowdroy decision 2:1 (see Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 per Emmett and Nicholas JJ, Jagot J dissenting). In August 2011, the High Court granted leave to AFACT to appeal against the Full Federal Court’s decision. That appeal was heard on 1-2 December 2011.