High Court of Australia, Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16, April 20, 2012

The High Court of Australia held that iiNet, Australia’s second largest ISP, was not liable for authorising its customers’ infringement of copyright films downloaded over BitTorrent. The Australian Federation Against Copyright Theft, now the Australian Screen Association, organised a lawsuit brought by 34 movie and television studios, alleging that iiNet was liable by failing to act upon notices alleging that users were infringing their copyrights. The court found that iiNet’s power to contractually terminate the internet accounts of infringing users was only an indirect power to prevent the primary infringements and insufficient to ground liability. Termination would also expose iiNet to the risk of wrongful termination, and would go further than simply preventing infringement by also denying iiNet customers the non-infringing uses of the internet connection. Therefore iiNet’s inactivity in the face of infringement notices from copyright holders was not indifference amounting to authorisation. The court was critical of the appellants’ reliance on “countenance” to expand the core notion of “authorise” and highlighted the dangers of relying on synonyms for “authorise” found in the dictionary. The court also noted that the mere conduit exception, s 112E, was enacted from an abundance of caution and has no practical effect.Because iiNet had not authorised its customers acts of infringement, the High Court was not required to examine the operation of the safe harbours. The appeal decision of the Full Federal Court below had held that iiNet was not eligible for the protection of the safe harbours as it had not reasonably implemented an appropriate repeat infringer policy. iiNet had argued that its unwritten policy was to terminate the accounts of subscribers who had admitted to infringement or had been found by a court or other authority to have infringed copyright, or when ordered to do so by a competent court. Each member of the Full Federal Court found that this was not an appropriate policy (Justice Emmett described the “so-called policy” as “no more than a policy to obey the law” 264).