A group of 34 movie studios has lost its appeal against an Australian Federal Court judgment involving Internet Service Provider iiNet. A 2010 ruling found it was impossible to hold iiNet responsible for its users illegally downloading movies and television shows. The studios had tried to prove iiNet not only failed to take steps to stop illegal file-sharing by customers, but breached copyright itself by storing the data and transmitting it through its system.
“Our original contention was upheld that we don’t believe we ever authorised or did anything to encourage customers to breach copyright,” claimed iiNet Chief Executive Michael Malone. “We’ve won at the lower court, we’ve won at the Federal court now in the appeal, but all this legal action hasn’t stopped one customer from downloading anywhere in Australia.”
Repeating his comments from the 2010 ruling, Malone suggested the way forward was to “invite the rights holders back, let’s make the content available legally and legitimately so customers can get access to it, and let’s find a better way to be able to police those who don’t do the right thing,” suggesting that “ultimately this is only going to be resolved by the government stepping in and giving clarity on the situation.”
In his judgment dismissing the appeal, Justice John Nicholas said iiNet accepted that it had general knowledge of copyright infringement committed by its users, but, also observed, that it would be difficult for the company to act on knowledge of such a general kind with a view to preventing or avoiding copyright infringements by people using its network. “This is because the respondent would have no means of knowing who had used its facilities to infringe copyright unless that knowledge was provided to it by third parties,” he said.
According to Judge Nicholas, iiNet could not reasonably be expected to issue warnings, or to terminate or suspend particular accounts, in reliance upon any such notice in circumstances where it has been told nothing at all about the methods used to obtain the information which led to the issue of the notice. “Nor should it be up to the respondent to seek out this information from a copyright owner who chooses not to provide it in the first place.”
Executive director of the Australian Federation Against Copyright Theft (AFACT), Neil Gane, noted that iiNet had admitted to tens of thousands of copyright infringements. “It cannot be right that, in effect, the ISP, who has the power to prevent copyright infringement online and admitted they were taking place, does not share the responsibility to stop them,” he said, suggesting that “copyright infringement now goes on unabated on the Internet. We take heart however, that Justice Jagot found for us and that Justice Emmett said that we were successful on many grounds.” He confirmed that AFACT would examine the judgment in detail and consider all of its options.