In summary, in this proceeding, the key question is: Did iiNet authorise copyright infringement? The Court answers such question in the negative for three reasons: first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.
16 Feb 2010
In a recent decision, which is bound to create much furore amongst the owners of copyright in digital media, the Australian Federal Court has dismissed the claim of Roadshow Films studio against iiNet (a prominent Internet Service Provider) alleging illegal movie downloads undertaken through the ISP server. The elaborate decision authored by Justice Cowdroy runs into 635 paragraphs, takes note of the relevant technical literature and the applicable law to dismiss the claim holding that the ISP did not provide any means of infringement to the downloaders and the unauthorised downloads throught Bit-torrent system could not be controlled by the ISP.
The summary of the decision, prepared under the orders of the court sets out the main reasons for dismissing the claim as under;
Setting free the ISP from claim, the Federal Court in conclusion noted "444. The Court finds that the respondent had no relevant power to prevent the infringements which were occurring. In making such finding, as discussed at  above, the claim that the respondent has authorised the infringements of the iiNet users must fail. 445. It is unfortunate that the outcome of the Court’s finding is that the applicants will continue to have their copyright infringed. However, the fault lies with the applicants for choosing the wrong respondent. The current respondent does not stand in the way of the applicants pursuing those who have directly infringed their copyright nor in the way of the applicants pursuing any of the constituent parts of the BitTorrent system for authorisation. This decision in no way forecloses the applicants pursuing those other avenues to obtain a suitable remedy. The existence of infringement of copyright, however regrettably extensive, can never compel a finding of authorisation."