AFACT Claim Against Australian ISP iiNet: Internet Copyright Infringement and Service Providers

摘要

Unlike some other jurisdictions, Australia has seen minimal litigation on the liability of ISPs for copyright infringement. The 2010 case o/Roadshow Films Pty Ltd v iiNet Ltd (No.3) was the first test case to determine the scope of an internet service provider's liability under Australian copyright law for copyright infringement conducted by its users. In this landmark decision, Justice Cowdroy said that Australia's third largest ISP, iiNet, had not authorised its users to engage in copyright infringement and established that iiNet had done no more than to provide an internet service to its users. (iiNet's position was clearly different from that of the well-known cases of Moorhouse, Kazaa, and Cooper, in which the court held that copyright infringements had occurred as the defendants had provided the "means " of infringement. In comparison, Cowdroy J. held that "mere provision of facilities by which an infringement can occur will not necessarily constitute infringement", drawing an analogy with the use of a photocopier in a library. This clearly shows that the extent of the service providers actual or apparent knowledge of infringing activity occurring via its services, and its ability to control infringing behaviour conducted using its services, will play an important role in deciding the service provider's liability in copyright infringements.) This article analyses this very important case, outlines the debate regarding legal liability issues associated with internet service providers andfocuses on the potential risks, liabilities and obligations the service provider may face. It also offers an analysis of some of the legal challenges that occurred in the case which are likely to continue to occur under Australian copyright law. It then briefly addresses how recent court decisions have addressed ISPs' liability in international jurisdictions.