?You Have No Right To Let Them Copy My Films?- Copyright ...

In a recent decision, the High Court of Australia decided a case where an internet service provider was accused of allowing Copyright infringement.

In Roadshow Films Pty Ltd v iiNet Limited, the Court decided whether allowing customers to download films using software that facilitates peer-to-peer file sharing system would constitute secondary Copyright infringement.

Facts:

iiNet (Respondent) provided internet access to its customers under the terms of its Customer Relationship Agreement (?CRA?).

AFACT is an organisation which represents owners and exclusive licensees of copyright in films and television programs, including the appellants (Roadshow Films Pty Ltd ). AFACT employed a company called DtecNet Software APS (?DtecNet?) to gather evidence of alleged copyright infringement by Australian internet users.

DtecNet narrowed its investigations to target the use of the BitTorrent system by customers of four Australian ISP s, one of which was iiNet.

Thereafter, the Executive Director of AFACT, Mr Neil Gane, sent a Notice of Infringement of Copyright to iiNet.

When iiNet did not suspend or terminate any customer account in response to allegations of copyright infringement in the AFACT notices, the AFACT took iiNet to Court.

Key point:

Whether iiNet authorised its customers? infringing acts?

Decision:

The Court while dismissing the appeal laid the following:

1. It is important to note that iiNet has no involvement with any part of the BitTorrent system, and therefore, has no power to control or alter any aspect of the BitTorrent system including the BitTorrent client. Further, iiNet is not a host of infringing material, or of websites which make available .torrent files relating to infringing material

2. iiNet does not assist its customers to locate BitTorrent clients or .torrent files by any indexing service or database entries. It cannot monitor the steps taken by users of its internet services under the BitTorrent system, it cannot directly prevent users of its internet services from downloading a BitTorrent client or .torrent files, and it cannot identify specific films to which users of its internet services seek access.

3. Once infringing material is stored on a customer?s computer, iiNet cannot take down or remove that material, and cannot filter or block the communication of that material over its internet service. Nor has iiNet any power to prevent its customers from using other internet services .

4. Under the Customer Relationship Agreement (?CRA?), iiNet contracted to give its customers access to the internet (which carried with it power to use the internet for infringing or non-infringing purposes) on the basis (set out in cll 4.2(a) and (e) of the CRA) that iiNet was not thereby purporting to grant to the customer any right to use the internet to infringe another person?s rights, or for illegal purposes.

Lesson:

This case highlighted an important point of limitation of liability of an ISP. The power of an ISP with respect to the use of facilities provided to subscribers will be limited by the nature of their commercial relationship and an ISP cannot control the choice of its subscribers and other users to utilise any software, nor can they modify any software or take down the films which were made available online by the software.

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