Recently, the Australian Federal Court decided that the ISP iiNet was not liable to a group of the largest Hollywood studios including Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney.
This was the first Australian trial to be covered on Twitter – demonstrating the enormity of the case.
The case was important because it set a legal precedent as to what ISPs are required to do to prevent customers from downloading movies and other content illegally.
In a 200 page judgment, Justice Cowdroy held that the evidence established that iiNet had done no more than provide an Internet service to its users. It was found that the ISP provided a legitimate communication facility which was neither intended nor designed to infringe copyright.
The studios claimed that the ISP was liable for authorizing copyright infringement because it failed to warn offending customers when repeatedly notified of the infringements by the studios. The studios had hired an online investigatory firm to intercept BitTorrent traffic and record instances of iiNet users downloading pirated movies.
This decision appears to be consistent with the theory of secondary copyright liability developed in the US case of Sony v Universal: the lack of control over the system meant that iiNet had no legal responsibility over its users, despite knowledge that some users were infringing copyright.
As far as Australia goes, this case proves that if you provide facilities that assist in infringement but you do not have control and do not act in bad faith, you will not be liable for secondary copyright infringement.
Gene Goodsell is the Managing Director of an entertainment management firm (www.navitasmgmt.com) and law firm that specialises in media & entertainment law (http://www.navitaslegal.com/entertainment-law.php). Both firms are based in Sydney but have strong links to agencies, management firms and law firms in Los Angeles. Please contact Gene regarding any global media & entertainment issues.
It should be noted that in the US, we'd likely see the same result, since under the DMCA safe-harbor, an ISP is protected from liability (provided it complies with notice & takedown procedures, etc.)
That's interesting. So, will this case be followed closely in the US? The studios' seem to be sparing no expense in launching an appeal here.