Did the respondent provide the 'means' of infringement?
400 It is important to distinguish between the provision of a necessary precondition to infringements occurring, and the provision of the actual 'means' of infringement in the reasoning of Gibbs J in Moorhouse. As discussed earlier, a photocopier can be used to infringe copyright, but on the reasoning of Gibbs J and Jacobs J, the mere provision of a photocopier was not the 'means' of infringement in the abstract. Rather, it was only the 'means' of infringement in the particular context of the library, where it was surrounded by copyright works. Other preconditions existed, namely the supply of power and the physical premises in which the infringements occurred. The presence of each of these factors was a necessary precondition for the infringements to occur, but that does not inexorably lead to the conclusion that a person who individually provided each one of those preconditions could equally be found to have authorised the infringements.
401 In the present circumstances, it is obvious that the respondent's provision of the internet was a necessary precondition for the infringements which occurred. However, that does not mean that the provision of the internet was the 'means' of infringement. The provision of the internet was just as necessary a precondition to the infringements which occurred in the Kazaa proceedings, but no ISP was joined as a respondent. The focus in that proceeding was correctly upon the more immediate means by which the infringements occurred, namely the Kazaa system. Indeed, the applicants' closing submissions in reply regarding the centrality of the provision of the internet (rather than the BitTorrent system) to infringing the communication right would suggest that Kazaa was wrongly decided and therefore the Court rejects them. The provision of the internet was also a necessary precondition to the infringements that occurred by the people who accessed Mr Cooper's website, but, again, the focus in those proceedings was rightly upon the narrower and more specific 'means' of infringement, namely the website and the ISP that hosted it. As with cases like Kazaa and Cooper, in the present circumstances there are also other necessary preconditions to bring about infringement, such as the computers upon which the infringements occurred or the operating systems on those computers, for example, Microsoft Windows.
402 The use of the BitTorrent system as a whole was not just a precondition to infringement; it was, in a very real sense, the 'means' by which the applicants' copyright has been infringed. This is the inevitable conclusion one must reach when there is not a scintilla of evidence of infringement occurring other than by the use of the BitTorrent system. Such conclusion is reinforced by the critical fact that there does not appear to be any way to infringe the applicants' copyright from mere use of the internet. There will always have to be an additional tool employed, whether that be a website linking to copyright infringing content like Mr Cooper's website in Cooper, or a p2p system like the Kazaa system in Kazaa and the BitTorrent system in the current proceedings. Absent the BitTorrent system, the infringements could not have occurred.
403 The infringing iiNet users must seek out a BitTorrent client and must seek out .torrent files related to infringing material themselves. In doing so, they are provided with no assistance from the respondent. The respondent cannot monitor them doing so or prevent them from doing so.
404 For the abovementioned reasons, the Court finds that it is not the respondent, but rather it is the use of the BitTorrent system as a whole which is the 'means' by which the applicants' copyright has been infringed. The respondent's internet service, by itself, did not result in copyright infringement. It is correct that, absent such service, the infringements could not have taken place. But it is equally true that more was required to effect the infringements, being the BitTorrent system over which the respondent had no control.
405 All the evidence of the infringement of the applicants' films before the Court was generated by means of the use of the BitTorrent system. The DtecNet Agent operates as a BitTorrent client and participates in swarms. Mr Herps and Mr Fraser downloaded a BitTorrent client onto their computer and participated in BitTorrent swarms in order to infringe the applicants' copyright. All the particularised acts of infringement pleaded by the applicants in the applicants' particulars derive from the BitTorrent system. As the applicants said in their closing submissions, '[i]nsofar as the applicants allege that iiNet users have engaged in acts of infringement in the course of accessing the internet by means of iiNet's internet services, those users have done so using the BitTorrent protocol'.
406 In making such finding the Court does not wish to imply that the BitTorrent system is necessarily copyright infringing, nor that the BitTorrent system itself is illegal. Rather, that in the particular circumstances of these proceedings it is the 'means' of infringement, it having been deliberately used by persons to achieve this consequence. The Court expressly declines to find whether any constituent part of the BitTorrent system is the precise 'means' of infringement. As stated at [70]-[72], the BitTorrent system cannot sensibly be seen as anything other than all the constituent parts of that system working together.
407 There is no evidence before this Court that the respondent has any connection whatsoever with any part of the BitTorrent system. The respondent has no dealings with any organisation which produces BitTorrent clients. The respondent has no dealings with any website that makes available .torrent files that relate to infringing material. The respondent does not support any software, let alone software that is a constituent part of the BitTorrent system. Merely directing those asking questions about BitTorrent to a location where they can gain more information does not constitute 'support'. The respondent did make available a press release in relation to this proceeding via the BitTorrent system, but there is nothing untoward in using this system and it is not evidence of any relationship between the respondent and any of the constituent parts of the BitTorrent system.
408 In this sense the respondent is in an entirely different position to Comcen in Cooper, and this critical factual distinction is pivotal. In that proceeding, not only did the ISP host the 'means' of infringement (Mr Cooper's website) on their servers, they actively supported Mr Cooper in the creation of that website, and even entered into a contractual arrangement with him whereby Mr Cooper's website was hosted free of charge in exchange for Mr Cooper advertising Comcen on his website by means of a logo and link to Comcen's website.
409 In fact it was found at [157] of Cooper 156 FCR 380 by Kenny J that 'E-talk could have taken down the website itself. It could have declined to provide its host facilities'. Branson J said at [64] that Comcen could have withdrawn the hosting of the website or otherwise placed pressure on Mr Cooper 'to stop his website being used for the predominant purpose of copyright infringements'. In the present proceeding the respondent has no ability to do anything in relation to the BitTorrent system. It cannot pressure, cajole or threaten any BitTorrent client, or shut down any website hosting .torrent files associated with copyright infringing material. It could terminate the accounts of iiNet users who infringe but that is termination of the provision of the internet which, while certainly a precondition to the infringements, is not the 'means' by which those infringements occur.
410 The internet can be used to virtually any end. Mr Malone cited examples including communication, such as email, social networking websites and VOIP; online banking and retailing; and entertainment, such as through online media and games. The Court takes judicial notice of the fact that the internet is increasingly the means by which the news is disseminated and created.
411 While the Court expressly does not characterise access to the internet as akin to a 'human right' as the Constitutional Council of France has recently, one does not need to consider access to the internet to be a 'human right' to appreciate its central role in almost all aspects of modern life, and, consequently, to appreciate that its mere provision could not possibly justify a finding that it was the 'means' of copyright infringement. This position may be contrasted with the Kazaa system which was found to be predominantly used for, and certainly seen by its users as, the 'means' to infringe copyright. Similarly, the overwhelming majority of hyperlinks on Mr Cooper's website went to copyright infringing material.
412 Indeed, it is this very broadness of the uses of the internet which provides a clear distinguishing factor to other cases where authorisation was found. In the APRA cases, as already explained, there was very little use to which a live music venue could be put other than infringing copyright in the circumstances that APRA owned the performance rights of virtually every song that would be performed at such a venue and no licence was obtained. On the facts in both Metro and Jain there did not appear to be any relevant use of the venue for a non-infringing purpose, such as artists performing their original works for which APRA did not hold the performance rights. In Kazaa, as mentioned, the predominant use of the Kazaa system was to infringe. The overwhelming use of Mr Cooper's website was to infringe. In Australian Tape Manufacturers the High Court explicitly mentioned that tape and video recorders 'have lawful uses', suggesting that it was at least part of the reason why authorisation was not made out. The Court would note that the lawful uses of video recorders and tape were then far fewer than the internet has today. Indeed in Amstrad, which was relied upon in Australian Tape Manufacturers, Lord Templeman stated at 1050 that, '[i]t is statistically certain that most but not all consoles are used for the purpose of home copying in breach of copyright' (yet the authorisation of infringement was not found).
413 It is this broadness of the various uses of the internet which explains why its mere provision is not an implicit invitation in the sense discussed by Jacobs J in Moorhouse. The relevant invitation was one (at 21) which was 'an invitation to any user to make such use of the machines as he sees fit and therefore an invitation which extends to the doing of acts comprised in the copyright of the authors whose books are on the library shelves'. It was, as mentioned, an invitation 'extended to do the act comprised in the copyright'. However, the mere use of the internet cannot infringe copyright without more. The provision of the internet is not an implicit invitation to use it to infringe copyright, even if it is an unqualified invitation. The Court cannot imply such invitation in the present circumstances. Perhaps if the predominant use of the internet was to infringe copyright, its provision might constitute such an invitation. Perhaps if there was an additional relevant contextual factor, such as the existence of the library context in Moorhouse, an invitation to infringe could be implied. But in the circumstances of this case, the Court simply cannot find such implicit invitation to infringe as Jacobs J could in Moorhouse. On the facts before his Honour, there were copiers, whose one use was to copy, in an environment saturated with copyright works where one of the copyrights in those works was the exclusive right to copy. The internet has a litany of uses, and it is not saturated with copyright works in the same sense.
414 In conclusion, the Court considers that the respondent did not provide the 'means' of infringement in the sense that the phrase was used by Gibbs J. It did not extend an invitation to the iiNet users to use its facilities to do acts comprised in the copyright of the applicants. Consequently, the Court finds that the respondent did not authorise the infringement of copyright carried out by the iiNet users.