A landmark decision in the Federal Court – which found that internet service providers (ISPs) are not liable for illegal downloading by their users – is likely to be appealed, according to IP lawyers. iiNet, an Australian ISP, had been served with notices by the Australian Federation Against Copyright Theft (AFACT), alleging that iiNet's customers were infringing the copyright of the major film studios - specifically by sharing and downloading films and TV shows via the BitTorrent peer-to-peer protocol.
“Whichever way the decision went, it was always likely that an appeal would be made, and so Justice Cowdroy's judgment is unlikely to be the final word on this important issue,” Clayton Utz partner John Fairbairn said. “For copyright owners, this decision shuts off a potentially powerful way of reining in online copyright infringement and has global implications in terms of how this difficult issue should be addressed.” Fairbairn, along with Timothy Webb, acted for the Internet Industry Association in relation to the proceedings.
HopgoodGanim’s IP & technology head Michael Morris said the ruling is unlikely to stop movie studios and other media producers lobbying for more legal protection. “It’s probable that they will either appeal the decision or look for a legislative response to address the ongoing problem of online piracy,” he said. “At the moment, companies and copyright holders have no effective legal protection against copyright infringement carried out on the internet [since] legislation hasn’t kept up with advances in technology.”
ISPs are routinely sent infringement notices by copyright owners, Fairbairn said, adding that ISPs could have been forced to take responsibility for the infringing acts of their customers if the copyright owners were successful. However, Justice Cowdroy ruled that iiNet only provided the means of accessing the internet, but not the means by which infringement occurred – in this case, the BitTorrent protocol.
“The judge pointed out that all iiNet did was provide its users with access to the internet,” Morris said. “It’s unfortunate that some of these users then used file sharing programs and infringed copyright, but holding iiNet accountable for this would be like holding Australia Post accountable for the contents of the letters they deliver.”
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