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Trade Agreement Implementation Act 2004 (Cth) Sch 9 & Copyright Legislation Amendment Act 2004 (Cth) Sch 1 (Safe Harbours) Safe harbours for intermediaries were introduced as part of the Australia - United States Free Trade Agreement (Ch 17) by the US Free Trade Agreement Implementation Act 2004 (Cth) Sch 9 and amended by the Copyright Legislation Amendment Act 2004 (Cth) Sch 1. The safe harbours largely follow the structure of 17 USC 512, although they have been substantially redrafted. The safe harbours limit the liability for intermediaries to injunctive relief for transmission, caching, hosting, and indexing activities (Section 116AG). The conditions imposed on intermediaries seeking to rely on the safe harbours include a reasonably implemented termination policy for repeat infringers and a notice and takedown...

Website blocking scheme: Section 115A of the Copyright Act 1968 enables copyright owners to the Federal Court of Australia for an injunction requiring ISPs to disable access to online services hosted outside Australia. Before granting the injunction, the Court must be satisfied that the foreign site either directly infringes copyright or ‘facilitates’ infringement. Rightsholders bear the onus of showing that the ‘the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).’ The Court must take into consideration a range of factors including whether disabling access to the online location is a proportionate response in the circumstances, the impact on any person likely to be affected by the grant of the injunction, and whether it is in the...

The University of New South Wales was found liable for authorising the infringements of those who used the photocopiers it provided in its library. The case was brought as a test case, with plaintiffs alleging that UNSW was liable for making the photocopy machines available within its library without supervision and without appropriate notices about copyright rules. The High Court held that “authorise” in s 36(1) of the Copyright Act 1968 means “sanction, approve, countenance”. Two approaches to evaluating authorisation liability emerged from the case. Justice Gibbs stated the test which would later be codified in ss 36(1A) and 101(1A): “It seems to me... that a person who has under his control the means by which an infringement of copyright may be committed – such as a photocopying machine – and who makes it available...

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...

Successful appeal against suppression orders that would oblige internet content hosts to remove, or otherwise restrict access to, content they were not aware of. The suppression orders, made pursuant to state law, purported to prohibit the disclosure, dissemination or access to content via the internet, of material referring to a criminal trial. The New South Wales Court of Criminal Appeal found the orders to be inconsistent with the safe harbors in Clause 91 of Schedule 5 the Broadcasting Services Act 1992 (Cth).

The High Court of Australia held that Google did not engage in misleading or deceptive conduct under s 18 of the Australian Consumer Law (Schedule 2, Competition and Consumer Act 2010 (Cth)) by displaying or publishing misleading AdWords in organic search results. Google was not the author of the sponsored links; the advertisers were the authors, as they determined every relevant aspect of the sponsored links. Google's automated response (of displaying the sponsored link) to a user's search request merely assembled the information to be displayed as an advertisement. In doing so, Google neither adopted nor endorsed the misleading representations made by the advertisers, and was merely passing on the sponsored links 'for what they were worth'. Google was not relevantly different to physical intermediaries who publish...