The case of Roadshow Films Pty Ltd & Ors v iiNet Limited is a case concerning the level of responsibility ISPs should bear regarding copyright infringement.
In February of this year the Federal Court of Australia ruled that iiNet had not “authorised” the copyright infringement of its customers who used a BitTorrent system to unlawfully download copyright films and television.
The evidence presented in respect of the server’s ability to track user’s activity in relation to alleged breaches of copyrights from copyright ownersgrams suggested that the ISP was able to determine the IP address of the user committing copyright infringements which they then needed to connect to an individual person.
The case raised the question of whether iiNet films in making available the films and TV programs to the public online was liable for authorisation liability of the copyright owners’ right to communicate their works online under the leading High Court authority on authorisation liability in Moorhouse v University of New South Wales.
The Court considered the application of the principles in the Moorhouse test and the correct interpretation of the factors which must be taken into account the three statutory factors contained in s101(1A) of the Copyright Act in formulating a view that authorisation of copyright infringement has taken place.
There was a question of whether iiNet could be attributed with sufficient actual knowledge of the copyright infringement from the scheme which they had developed for detecting certain activities on IP addresses allocated by them to users.
There was a system in place which involved technicians situated partly in Denmark and the Baltic states and partly in Australia, which resulted in the generation of devised elicited thousands of items of captured information. That information was onforwarded in the form of zip files, letters, compressed files on DVDs and spreadsheets.
iiNet received automatically generated notices, otherwise known as robot notices by email containing allegations in relation to 5000 IP addresses a week, or some. The evidence was that iiNet had received roughly 350 such emails per day.
iiNet also received notification via a letter after discussion had ensued about this activity over a period of about a year between iiNet, other ISPs, industry bodies and the Australian Federation Against Copyright Theft (AFACT). A report called the DtecNet report had been compiled containing information about the method and was served on iiNet executives under confidentiality which was eventually lifted.
It was against this background that a question arose regarding the state of mind of iiNet as to its level or quality of awareness infringing activity, in particular whether that level of awareness was sufficient to constitute knowledge of infringement.
Under the Moorhouse test the question is whether iiNet took reasonable steps to prevent the infringement taking place given the factual background in terms of how they received and responded to the notifications of the activity. Given the level of knowledge attributed to iiNet should they have acted to terminate, warn or suspending users’ accounts?
It was accepted that iiNet had some knowledge of the infringing activity at the commencement of the proceeding, but it wasn’t identified with precision at what point during the original trial it attained a particular state or quality of knowledge in assessing their liability for authorisation.
Roadshow made an application for special leave to the High Court of Australia.
iiNet argued they were unable to detect the infringing activity occurring on it’s servers other than at a general level, although it was accepted that by the time that the case had commenced there was enough evidence to demonstrate they had reason to suspect that infractions were occurring.
The Court had dealt with the question as to whether iiNet could be said to have approved the infringements by their attitude of indifference or closing of their mind to the growing evidence available of the copyright infringement and acquiesced in it.
iiNet’s response was to communicate to their subscribers by way of a press release issued on the day that it was sued. iiNet informed their users that AFACT notices received by it weren’t sufficient to require it to disconnect its users’ services. iiNet did announce within the press release that they didn’t condone or encourage breaches of the law including copyright infringement and had forwarded complaints received to law enforcement for investigation. This was not construed by the court to be sufficient to amount to as encouraging or countenancing users to commit acts of copyright.
The High Court will now have to determined whether iiNet authorised infringements of Roadshows and other rights holders’ copyright by users of their internet services, which hinges on the question as to whether it had sufficient knowledge of infringing acts to support finding of authorisation.
This will turn on whether Roadshow are required to present the ISP with “unequivocal and cogent evidence” of infringing acts and whether iiNet’s conduct in response constituted “countenancing” of infringing acts under the principles in Moorhouse.
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