iiNet is Australia’s third-largest internet service provider (ISP) and the evidence in this infringement case suggested that more than half of its subscribers’ usage consisted of illegal downloading of content using BitTorrent peer-to-peer technology. AFACT, a coalition of copyright-holders, used a computer programme to gather evidence of infringement and sent the results to iiNet on numerous occasions. The issue was whether iiNet, having been notified of specific infringements, was itself liable for having authorised infringement: Roadshow Films Pty Ltd v iiNet Ltd, [2012] HCA 16.
In the end, no. While iiNet could have simply terminated individual subscriptions to its service, it would have needed to conduct an investigation of its own to determine who was downloading, which applicable legislation did not require it to do. It could not have terminated contracts solely on the basis of the AFACT notices, which did not provide enough information to go on. Inactivity could not give rise to an inference of authorisation – or indeed to one of indifference on the ISP’s part, given that it would have been imprudent to act on the basis of the AFACT notices alone, which might have deprived access to non-infringing services.
[Link available here].
