Wednesday, February 03, 2010

ISP beats Hollywood in Oz iiNet decision

The Federal Court in Australia has given a huge victory to an ISP that fought back against Hollywood.

Justice Cowdroy's landmark judgment is summarized as follows:
  1. 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.
  2. I will now make my formal orders. For the reasons provided in the written judgment I make the following orders.
    1. The Amended Application be dismissed.
    2. Subject to Order 3 and 4, the Applicants pay the costs of the Respondent, including costs thrown away as a result of the Applicants’ abandoning the primary infringement claim against the Respondent.
    3. Any party or person applying for an order for costs different to that provided by Order 2 is to notify the Court within 14 days in which event Order 2 will be vacated and in lieu costs will be reserved.
    4. If any application for costs is made as provided in Order 3 the parties and/or persons are to consult and prepare consent directions for the filing of submissions and, if required, for a hearing on costs.
Here's the decision - which is 636 paragraphs in length and extremely detailed in its factual and legal analysis.

It is worth noting that Justice Cowdroy issued this decision just 70 days - i.e. 10 weeks - after the conclusion of a hearing that began on October 26, 2009 and ended on November 26, 2009 with 19 hearing days . And much of the time the decision was pending was the Christmas season.

Michael Geist has quickly focused on the Judge's disparaging remarks on "termination" of subscribers accounts, and how this would not be reasonable because it would prevent use of the internet for all sorts of non-infringing uses.

Of course, the decision is mostly about "authorization", which is a proverbially important topic in Commonwealth countries and very different in important ways from the American concept of contributory infringement or secondary liability. It is this latter concept plus the US Supreme Court's "inducement" doctrine enunciated in Grokster + the US instigated three strikes policy that the US is trying to force upon Canada and ohter countries in every forum it can.

"Authorization" was also a key issue in the Canadian Supreme Court's landmark 2004 CCH decision.

While this decision will make for wonderful reading for copyright aficionados everywhere, and much celebration by those who believe in reasonable, proportionate and effective remedies, there will also be another process starting immediately.

This will entail the inevitable spin and propaganda that entertainment industry lobbyists will invoke as to how this decision clearly proves the need for a strong and mandatory "three strikes" mechanism and that ACTA is just the right forum to put it into place.



It sure didn't take long for the spin to begin. See this .... HT @MichaelGeist on Twitter.


  1. The decision had the potential to profoundly impact internet users and the internet industry as it sets a legal precedent surrounding how much ISPs are required to do to prevent customers from downloading movies and other content illegally.

  2. I predicted that the push would move to ACTA too, and I'm not happy to be proven right.

    Remember the interview that was conducted with the American trade official, where he said that countries would walk away from the table if ACTA was public? What he didn't say was that if ACTA was public, the first country that would abandon the negotiations would be the United States, and that's a point that I think needs to be publicly made as often as possible.