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[2012] HCA 16
respondent. Appeal dismissed with costs.
13 cited instruments linked from this judgment.
The High Court of Australia decided that iiNet, an internet service provider, was not liable for authorising its customers' illegal downloading and sharing of movies and TV shows using BitTorrent software. Even though the movie companies sent iiNet many notices about specific infringements and iiNet did nothing to stop those customers, the court ruled this did not amount to authorisation. The judges looked at the three factors in s 101(1A) of the Copyright Act: iiNet had only limited power to stop the infringements (it could only cut off a customer's entire internet service, not remove specific files); its relationship with customers was a contract that actually forbade illegal use; and it was not reasonable to expect iiNet to act on the notices because they did not give clear enough proof and acting might lead to unfair disconnections or legal risks for iiNet. The court stressed that providing internet access is not the same as approving copyright theft, and the law on authorisation is not well suited to dealing with widespread peer-to-peer sharing. The appeal by the movie companies was dismissed.
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The appellants, comprising 34 Australian and United States companies that owned or exclusively licensed copyright in thousands of commercially released films and television programs (with 86 films forming a sample in evidence), commenced proceedings against iiNet Limited, the third-largest Australian internet service provider at the relevant time with approximately 490,000 customers. The core allegation was that iiNet had infringed the appellants' copyright by authorising its customers' primary infringements. Those primary infringements occurred when customers used the BitTorrent peer-to-peer file sharing system to download the appellants' films and, in doing so, automatically made them available online to other users in breach of the exclusive right to communicate the film to the public under s 86(c) of the Copyright Act 1968 (Cth).
From August 2007, the Australian Federation Against Copyright Theft (AFACT), acting on behalf of the appellants, engaged DtecNet Software APS to monitor infringing activity. From June 2008, DtecNet focused on iiNet customers using a modified BitTorrent client (the DtecNet Agent) that both participated in swarms and logged IP addresses of other peers sharing .torrent files associated with the appellants' films. Between July 2008 and August 2009, AFACT sent iiNet approximately weekly "Notices of Infringement of Copyright". Each notice included a spreadsheet listing IP addresses, dates, times, and hash values said to evidence multiple infringements by iiNet customers. The notices asserted that iiNet's failure to prevent continuing infringements might itself constitute authorisation and requested that iiNet prevent the identified customers from infringing.
iiNet's Customer Relationship Agreement (CRA) expressly prohibited use of its service to commit offences, infringe rights, or for illegal purposes (cll 4.1 and 4.2). It also permitted iiNet to suspend or terminate service for breach, including where iiNet reasonably suspected illegal conduct (cl 14.2). Despite this, iiNet took no steps to warn, suspend or terminate any accounts in response to the AFACT notices. iiNet's responses to AFACT emphasised that the data did not sufficiently identify individual customers (dynamic IP addresses could correspond to multiple users or shared connections such as libraries or wi-fi hotspots), that the methodology was opaque, and that allegations of infringement were properly a matter for law enforcement rather than the ISP. iiNet did, however, suspend or terminate accounts in other contexts, such as non-payment or spamming, where it could verify issues independently.
By mid-2008, more than half of iiNet's traffic volume involved BitTorrent file sharing, and it was common knowledge within the industry that the protocol was frequently used for infringing purposes, although it was also capable of non-infringing uses. iiNet maintained a website notice warning that hosting or posting illegal copyright material breached the CRA and could result in suspension or termination. It also published contact details for copyright notices under the safe harbour provisions (ss 116AA-116AJ) and offered a "Freezone" service providing access to licensed, non-infringing content including films and television programs.
Proceedings were instituted in the Federal Court on 20 November 2008. During discovery, iiNet was provided with further DtecNet data enabling identification of 20 specific customer accounts (the "R20 accounts") that had repeatedly appeared in the AFACT notices. By the time of trial, iiNet did not dispute the underlying primary infringements alleged in the notices between 23 June 2008 and 9 August 2009. Cowdroy J at first instance held that iiNet had not authorised the infringements, placing emphasis on the fact that the BitTorrent system itself, rather than iiNet's provision of internet access, was the means of infringement. The Full Court of the Federal Court (Emmett and Nicholas JJ, Jagot J dissenting) dismissed an appeal, although all members found that the primary judge had not correctly applied the statutory test in s 101(1A). The High Court granted special leave and heard the appeal in 2011, delivering judgment on 20 April 2012. The Court unanimously dismissed the appeal with costs, holding that iiNet had not authorised its customers' infringing acts.
The High Court's reasoning centred on the proper construction and application of ss 101(1) and 101(1A) of the Copyright Act within the broader statutory framework that had been amended by the Copyright Amendment (Digital Agenda) Act 2000 (Cth) to address new communications technologies. French CJ, Crennan and Kiefel JJ (with whom Gummow and Hayne JJ agreed in separate reasons) emphasised at [5] and [71] that whether a person has authorised an infringing act "depends upon all the facts of the case" and is an inference to be drawn from those facts. The three mandatory considerations in s 101(1A) were therefore not to be applied rigidly or in isolation but as part of a holistic assessment.
On the first factor (extent of power to prevent the act under s 101(1A)(a)), the Court found iiNet possessed no direct technical power. It had no involvement with any component of the BitTorrent system, could not modify the BitTorrent client, could not monitor the content of communications once data packets left its network, could not take down infringing material stored on customers' computers, and could not block specific .torrent files or swarms ([47]-[50]). The only power available was indirect and contractual: termination of a customer's entire internet service under the CRA. That power was limited because termination would also prevent all non-infringing uses, customers could readily switch to another ISP, and multiple users might share a single IP address. The Court distinguished the facts from University of New South Wales v Moorhouse (1975) 133 CLR 1, where the university provided both the copyrighted books and the photocopier on its premises and exercised direct control over the library environment ([50], [55]). iiNet exercised no equivalent dominion over the BitTorrent system or the content communicated.
The second factor (nature of the relationship under s 101(1A)(b)) reinforced the absence of authorisation. The CRA expressly required compliance with all laws and prohibited infringing or illegal use (cll 4.1, 4.2). Far from purporting to grant any right to infringe, iiNet's contractual terms positively disapproved of such conduct. Customers could not reasonably infer from iiNet's inaction or media releases that iiNet was willing to countenance infringement or that it possessed authority to authorise making the films available online ([63]-[65]). The relationship was that of a carriage service provider supplying a general-purpose facility, not a party granting permission for specific infringing acts. Section 22(6) made clear that iiNet was not the person responsible for determining the content of communications, and s 112E provided that merely providing facilities for communications does not constitute authorisation ([20]-[21]).
On the third factor (reasonable steps under s 101(1A)(c)), the Court held that the AFACT notices did not provide a reasonable basis for iiNet to send warnings or threaten suspension or termination. The notices identified IP addresses but did not disclose the full DtecNet methodology until expert evidence was filed in the proceedings. Even after identification of the R20 accounts, acting solely on the notices would have required iiNet to undertake its own costly verification, exposing it to the risk of wrongful termination claims if the data proved inaccurate. Warnings would need to be followed by further monitoring to check compliance, and termination would not guarantee cessation of infringement because a customer could simply obtain service from a competitor ([67]-[77]). The absence of an industry code of practice binding all ISPs (as contemplated by s 101(1A)(c) and the safe harbour provisions) further undermined the reasonableness of expecting unilateral action by iiNet. The Court noted that iiNet's media releases asserting that proof in court should be required before disconnection did not amount to "tacit approval" sufficient to constitute authorisation when viewed against the statutory factors ([68], [158] in the Full Court reasons, distinguished).
Both sets of reasons concluded that the appellants' argument effectively sought to impose obligations on ISPs that the Copyright Act does not enact. The statutory tort of authorisation, while economically rational for cost-effective enforcement, could not be stretched to require ISPs to act as proxy copyright enforcers on the basis of the material supplied. The appeal was therefore dismissed.
Prior to the 2000 amendments, the concept of authorisation derived from common law authorities interpreting s 1(2) of the Copyright Act 1911 (Imp), which had been adopted in Australia. Cases such as Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 established that authorisation required some power or authority to control the infringing act and that mere indifference or inactivity did not necessarily constitute permission ([42]-[49]). Moorhouse clarified that a person with control over the means of infringement who makes those means available, knowing or having reason to suspect likely infringing use and failing to take reasonable steps to limit that use, may authorise resulting infringements ([50]-[56]). Gibbs J's formulation in Moorhouse at 13 directly influenced the text of s 101(1A)(a) and (c). Tape Manufacturers (1993) 176 CLR 480 confirmed that sale of articles with lawful uses does not authorise infringement where the vendor lacks control over the purchaser's ultimate use.
The Copyright Amendment (Digital Agenda) Act 2000 (Cth) introduced the new right to communicate to the public (ss 10(1), 86(c)), inserted s 101(1A) to partially codify the common law principles from Moorhouse and related authorities, enacted s 112E to implement the WIPO Copyright Treaty agreed statement that mere provision of physical facilities does not amount to communication, and added s 22(6) to exclude ISPs from primary liability for content they do not determine ([22]-[30]). The subsequent US Free Trade Agreement Implementation Act 2004 (Cth) added the safe harbour provisions (ss 116AA-116AJ), which limit remedies against compliant carriage service providers but were held inapplicable on the facts.
After the decision, the law remains that authorisation is a fact-specific inquiry governed by s 101(1A). The judgment confirms that ISPs are not required to act as copyright police on the basis of notices that do not supply verifiable, court-ready evidence. It underscores that legislative solutions, such as graduated response schemes or industry codes with cost-sharing (expressly noted at [78] and [84]), are preferable to judicial expansion of secondary liability. The safe harbour provisions and s 112E continue to protect ISPs who do not determine content, while the distinction between primary and secondary infringement is preserved. No obligation is imposed on ISPs to monitor or terminate on the basis of allegations alone where doing so would be unreasonable having regard to cost, risk and efficacy.
Paragraph [5]: "The key question in the appeal, whether iiNet authorised its customers' infringing acts, 'depends upon all the facts of the case'."
Plain English: The judges are reminding everyone that there is no simple checklist; you must look at the whole picture, not just whether iiNet knew about the downloads.
Paragraph [47]: "iiNet had no involvement with any part of the BitTorrent system and therefore has no power to control or alter any aspect of the BitTorrent system, including the BitTorrent client."
Plain English: iiNet cannot reach inside customers' computers or change how BitTorrent works; its only lever is to cut off the entire internet connection, which is a blunt and indirect tool.
Paragraph [63]: "'Countenance' is a long-established English word which, unsurprisingly, has numerous forms and a number of meanings which encompass expressing support, including moral support or encouragement. In both the United Kingdom and Canada, it has been observed that some of the meanings of 'countenance' are not co-extensive with 'authorise'. Such meanings are remote from the reality of authorisation which the statute contemplates."
Plain English: Just because the old cases used words like "countenance", you cannot pick the widest dictionary meaning and say that doing nothing equals approval. The statute now tells us what matters: power, relationship and reasonable steps.
Paragraph [71]: "It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized."
Plain English: Whether someone has authorised infringement is decided by looking at what they actually did (or did not do) and asking what that conduct really implies in the real world.
Paragraph [78]: "This final conclusion shows that the concept and the principles of the statutory tort of authorisation of copyright infringement are not readily suited to enforcing the rights of copyright owners in respect of widespread infringements occasioned by peer-to-peer file sharing, as occurs with the BitTorrent system. The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes..."
Plain English: The authorisation rules were not designed for mass internet file sharing. Parliament should fix this with new laws that set up proper systems for ISPs and copyright owners to share the burden, rather than expecting judges to stretch the old rules.
This precedent is triggered where an ISP provides general internet access that customers use to engage in peer-to-peer file sharing via protocols such as BitTorrent, the ISP receives notices from copyright owners identifying IP addresses and alleged infringements, the ISP has contractual power to terminate service for breach but no technical ability to remove specific infringing files or block particular swarms, and the ISP declines to act on the notices because they lack sufficient verifiable detail or because acting would be unreasonable having regard to cost, risk of error, potential customer claims, and the limited efficacy of termination (customers can switch providers). The precedent applies whenever the s 101(1A) factors, weighed together, show that the ISP's power is only indirect, the contractual relationship does not purport to authorise infringement, and no industry code or court order compels specific remedial steps. It is not engaged where the ISP hosts infringing content, indexes torrent files, modifies the file-sharing software, or expressly encourages infringement, as those facts would strengthen the inference of authorisation (distinguished from cases such as Cooper and Kazaa referenced at [72]).
The ratio is engaged whenever a court must decide whether mere provision of internet carriage, coupled with knowledge from third-party notices that do not approximate admissible evidence, crosses the line into authorisation. It is not limited to cinematograph films; the same analysis applies to any copyright subject-matter where the alleged secondary infringer is a carriage service provider within the meaning of the Telecommunications Act 1997 (Cth) and relies on ss 22(6), 112E and the safe harbour provisions.
The judgment itself grounds its treatment of prior authorities. It distinguished Moorhouse on the basis that the university controlled both the copying device and the premises and supplied the copyrighted works, whereas an ISP supplies only a general communications facility over which it has no content control ([50], [55]). Adelaide Corporation was cited for the proposition that permission requires some power to control the specific act and that indifference does not necessarily establish authorisation ([42], [48]). CBS Songs was cited for the principle that selling equipment with copying capacity does not authorise infringement where the seller does not purport to grant the right to copy ([38]). Jain was distinguished because the director there had effective control over the venue where unlicensed performances occurred and did nothing to stop them, whereas iiNet lacked equivalent control over its customers' computers ([71]).
The judgment notes that the statutory tort of authorisation is not well suited to peer-to-peer infringements and that legislative schemes (such as those later enacted in the United Kingdom and New Zealand) are the appropriate response ([78], [84]). It affirms that s 112E, while seemingly redundant, confirms that provision of facilities alone does not constitute authorisation ([20], [131] in the Full Court). Subsequent references in the reasons to the need for an industry code binding all ISPs and the risks of unilateral termination reflect the continuing relevance of the safe harbour conditions in ss 116AA-116AJ, which require reasonable steps but were held inapplicable on these facts. The decision therefore narrows the circumstances in which an ISP will be held to have authorised infringement by emphasising the limited nature of its power and the unreasonableness of expecting it to act as a substitute for court processes or comprehensive legislative schemes.
The judgment leaves open what would constitute "reasonable steps" where an ISP receives more detailed, court-verifiable evidence of infringement or where an industry code of practice under the Copyright Regulations has been developed and adhered to by all major ISPs ([67], [76]). It does not decide whether a graduated response system (warning, then suspension, then termination) would be reasonable if the underlying notices supplied admissible evidence and included a mechanism for cost-sharing between copyright owners and ISPs. The precise threshold at which knowledge from notices becomes sufficient to trigger a duty to investigate or act remains fact-dependent, as does the question whether an ISP that voluntarily implements a system for verifying notices could still avoid liability if that system proves imperfect.
The interaction between the authorisation provisions and the safe harbour limitations on remedies (particularly s 116AG(3)(b), which contemplates court orders for termination of specified accounts) is noted but not resolved, because iiNet did not rely on the safe harbours in the High Court. Whether termination of an account can ever be a reasonable step when it affects non-infringing uses and when customers can migrate to competitors is left for future cases with different evidence of efficacy. The judgment expressly records that the concept of authorisation may not be the best tool for widespread peer-to-peer infringement and that specially targeted legislative schemes with judicial oversight or industry protocols are preferable; the parameters of any such future scheme remain open. Finally, the Court did not need to decide the notice of contention concerning obligations under the Telecommunications Act 1997 (Cth) that might prohibit disclosure or termination based on unverified allegations, leaving that statutory interaction unresolved.
For the reasons that follow, in our opinion, the conduct of iiNet did not constitute authorisation of its customers' infringing acts.
"Subject to this Act, a copyright subsisting by virtue of [Pt IV] is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright."
Accordingly, a primary infringement of a copyright in a cinematograph film occurs when a person, who is neither the owner nor the licensee, makes the film available online without the copyright owner's consent; a secondary infringement occurs when a person, who is neither the owner nor the licensee, authorises the making available online of the film without the copyright owner's consent.
"In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting by virtue of this Part without the licence of the owner of the copyright, the matters that must be taken into account include the following:
(a) the extent (if any) of the person's power to prevent the doing of the act concerned;
(b) the nature of any relationship existing between the person and the person who did the act concerned;
(c) whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice."
Something more will be said later about the context in which s 101(1A) was introduced.
"For the purposes of this Act, a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication."
Accordingly, iiNet is not liable for any primary infringement in respect of the conduct of its customers[6].
"A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright."
As an ISP, iiNet is a "carriage service provider"[7]. A cinematograph film is an "audio-visual item" within the meaning of s 100A, and the meaning of the word "communication" in s 112E corresponds with the definition of "communicate" in s 10(1).
"It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention."
. Sections 31, 85, 86 and 87 were all amended to add a new right, comprised in copyright in works and subject matter other than works, to communicate the work, sound recording, cinematograph film or television or sound broadcast to the public. The new right replaced the rights to broadcast and to transmit to subscribers to a diffusion service. Those rights had been overtaken by the availability of access to the internet. Section 10 was amended to include a definition of "communicate", as set out above.
. Section 101 was amended (as was s 36, in Pt III) to include a new sub‑s (1A) to codify at least partially common law developments in relation to authorisation.
. Section 22(6) was inserted (as, later, was s 22(6A)[17]), effectively exempting ISPs from direct liability for communication of copyright material[18].
. Section 112E was inserted (as was s 39B, in Pt III), implementing the agreed statement in relation to Art 8 of the WIPO Copyright Treaty.
. Sections 116AA to 116AJ, the "safe harbour" provisions, which correspond with cognate provisions in the United States[19], were introduced into Pt V (headed "Remedies and offences") by the US Free Trade Agreement Implementation Act 2004 (Cth) and the Copyright Legislation Amendment Act 2004 (Cth). Sections 116AB and 101(1A)(c) refer to industry codes. Regulation 20B of the Copyright Regulations 1969 (Cth) provides for the development of industry codes intended to represent a "consensus of copyright owners and carriage service providers".
. Sub-sections (5), (6), (7) and (8) of s 115, which were inserted into Pt V by Sched 4 to the Copyright Amendment Act 2006 (Cth), specify certain matters for courts to take into account when determining appropriate relief for electronic infringement on a commercial scale.
4.1 In using the Service, you must comply with all laws and all directions by a Regulatory Authority and reasonable directions by us.
4.2 You must not use, or attempt to use, the Service:
(a) to commit an offence or to infringe another person's rights;
14.2 We may, without liability, immediately cancel, suspend or restrict the supply of the Service to you if:
(b) you breach a material term (other than a breach which separately gives rise to rights under this clause 14.2) and that breach is not capable of remedy;
(c) you breach a material term (other than a breach which separately gives rise to rights under this clause 14.2) and, where that breach is capable of remedy, you do not remedy that breach within 14 days after we give you notice requiring you to do so;
(i) you breach clause 4 … or otherwise misuse the Service;
(j) we reasonably suspect fraud or other illegal conduct by you or any other person in connection with the Service;
14.3 If we suspend the Service under clause 14.2, then we may later cancel the Service for the same or a different reason."
"The seller of a record authorizes … the use of the record, and such user will be a performance of the musical work."
"in the opinion of those learned judges ['authorise'] is to be understood in its ordinary dictionary sense of 'sanction, approve, and countenance'."
That cumulative approach to the synonyms differed from the approach of Tomlin J.
"it appears to me that to 'authorize' means to grant or purport to grant to a third person the right to do the act complained of, whether the intention is that the grantee shall do the act on his own account, or only on account of the grantor".
"a person who has under his control the means by which an infringement of copyright may be committed - such as a photocopying machine - and who makes it available to other persons, knowing, or having reason to suspect, that it is likely to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use."
"The sale of a blank tape does not constitute an authorization by the vendor to infringe copyright. That is principally because the vendor has no control over the ultimate use of the blank tape".
"manufacture and sale of articles such as blank tapes or video recorders, which have lawful uses, do not constitute authorization of infringement of copyright, even if the manufacturer or vendor knows that there is a likelihood that the articles will be used for an infringing purpose such as home taping of sound recordings, so long as the manufacturer or vendor has no control over the purchaser's use of the article".
"Subject to this Act, a copyright subsisting by virtue of this Part is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright." (emphasis added)
It is upon the statutory criterion of authorisation that the appellants base their case.
"The cases in which men are liable in tort for pure omissions are in truth rare, as has been recently emphasized by Mr Jenks[120]. The common law of tort deals with causes which look backwards to some act of a defendant more or less proximate to the actual damage, and looks askance at the suggestion of a liability based not upon such a causing of injury but merely upon the omission to do something which would have prevented the mischief. Where tortious liability arises from some cause other than the commission of an unlawful act it is in general because the defendant has done something or put himself in a position which though lawful in itself does expose the rights of others to risk and danger, unless he shows such care as the circumstances require". (emphasis added)
"It is necessary to establish that the third party knew of the contract, knew that the doing of a particular act by one of the parties to it would be a breach of it, and with that knowledge procured the party to do the act. ... It may be that no tort is committed unless it is established that the doing of the act was procured either with intention to procure by its means the breach of the particular contract, or at least with knowledge that the doing of the act would necessarily and inevitably involve a breach of contract".
Likewise, the equitable wrong of "knowing assistance" in a dishonest and fraudulent design for breach of fiduciary duty, a distinct species of liability[124], requires actual knowledge thereof, or wilful shutting of eyes, or wilful and reckless failure to make such inquiries as an honest and reasonable person would make, or, at least, knowledge of circumstances which would indicate the facts to such a person[125].
"A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio‑visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright." (emphasis added)
(The term "audio‑visual item" is defined in s 100A in terms including a cinematograph film.)
"It is established that the word is not limited to the authorizing of an agent by a principal. Where there is such an authority the act of the agent is the act of the principal and thus the principal himself may be said to do the act comprised in the copyright. But authorization is wider than authority."
"As the acts that may be complained of as infringements of copyright are multifarious, so, too, the conduct that may justify an inference of authorisation may take on an infinite variety of differing forms. In these circumstances any attempt to prescribe beforehand ready‑made tests for determining on which side of the line a particular case will fall, would seem doomed to failure."
"To my mind the hiring out of the film for three days on the terms of the contract of hiring, which is before us, amounts to an authorization by the defendants to Chetham to perform the play, and is an infringement of the right of the plaintiff, who alone has the right to give such an authorization. For the purposes of this case it appears to me that to 'authorize' means to grant or purport to grant to a third person the right to do the act complained of, whether the intention is that the grantee shall do the act on his own account, or only on account of the grantor". (emphasis added)
"manufacture and sale of articles such as blank tapes or video recorders, which have lawful uses, do not constitute authorization of infringement of copyright, even if the manufacturer or vendor knows that there is a likelihood that the articles will be used for an infringing purpose such as home taping of sound recordings, so long as the manufacturer or vendor has no control over the purchaser's use of the article".
"In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in a copyright subsisting by virtue of this Part without the licence of the owner of the copyright, the matters that must be taken into account include the following:
(a) the extent (if any) of the person's power to prevent the doing of the act concerned;
(b) the nature of any relationship existing between the person and the person who did the act concerned;
(c) whether the person took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice."
"Is this again a case of the indifference of somebody who did not consider it his business to interfere, who had no desire to see another person's copyright infringed, but whose view was that copyright and infringement were matters in this case not for him, but for the owners of the copyright? It must be recalled that the most important matter to bear in mind is the circumstances established in evidence in each case."
"cinematograph film means the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:
(b) of being embodied in another article or thing by the use of which it can be so shown;
and includes the aggregate of the sounds embodied in a sound-track associated with such visual images." ↑
Introduced into Pt IV by the Copyright Amendment (Digital Agenda) Act 2000 (Cth). ↑
Cf Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140; [1997] HCA 41. ↑
Defined in s 10(1) by reference to the Telecommunications Act 1997 (Cth). ↑
Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285 at 347 [272] per Emmett J, 406 [524] per Jagot J, 464 [800] per Nicholas J. ↑
See Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215 at 229-235 [44]-[78] per Cowdroy J; Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285 at 296-300 [35]-[63] per Emmett J. ↑
See, for example, Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 ("Kazaa"). ↑
See, for example, Metro-Goldwyn-Mayer Studios Inc v Grokster Ltd 545 US 913 (2005) ("Grokster"). ↑
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at 281 [12] per McHugh ACJ, Gummow and Hayne JJ; [2004] HCA 14; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ; [2009] HCA 41; Australian Education Union v Department of Education and Children's Services (2012) 86 ALJR 217 at 224 [26]-[28] per French CJ, Hayne, Kiefel and Bell JJ; 285 ALR 27 at 34-35; [2012] HCA 3. ↑
Australia, House of Representatives, Parliamentary Debates (Hansard), 2 September 1999 at 9748. ↑
Australia, House of Representatives, Copyright Amendment (Digital Agenda) Bill 1999 (Cth), Explanatory Memorandum at 1. ↑
Australia, House of Representatives, Copyright Amendment (Digital Agenda) Bill 1999 (Cth), Explanatory Memorandum at 52 [122]-[124]. ↑
A clarifying provision introduced by Sched 7 to the Copyright Amendment Act 2006 (Cth). ↑
Cf Telstra Corporation Ltd v Australasian Performing Right Association Ltd (1997) 191 CLR 140. ↑
The Digital Millennium Copyright Act 1998 (US) introduced a new s512 to Title 17 (Copyrights) of the United States Code. Sections 116AC, 116AD, 116AE and 116AF of the Copyright Act correspond with ss512(a), 512(b), 512(c) and 512(d), respectively. The legislation was not directed to peer-to-peer file sharing: Recording Industry Association of America Inc v Verizon Internet Services Inc 351 F 3d 1229 at 1237-1238 (2003). ↑
Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215 at 339 [574]. See also Ficsor, "Copyright for the Digital Era: The WIPO 'Internet' Treaties", (1997) 21 Columbia-VLA Journal of Law & the Arts 197 at 214. ↑
The case was conducted on the basis that versions of the CRA which applied at all relevant times were not materially different. ↑
Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215 at 272 [275]. ↑
Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215 at 301 [404], 302 [407]. ↑
Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215 at 309 [436]. ↑
Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285 at 326-327 [179]-[180], 328 [188]-[189] per Emmett J, 381 [399] per Jagot J, 447 [713] per Nicholas J. ↑
"Mere inactivity or failure to take some steps to prevent the performance of the work does not necessarily establish permission. Inactivity or 'indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized the performance or permitted the use of a place of entertainment for the performance complained of' [citing Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 at 9 per Bankes LJ]." ↑
Adelaide Corporation (1928) 40 CLR 481 at 504 per Gavan Duffy and Starke JJ. ↑
Cf Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380 ("Cooper") at 392 [61]-[65] per Branson J, 413 [157] per Kenny J. ↑
Cf Kazaa (2005) 220 ALR 1; Aimster 334 F 3d 643 (2003); Twentieth Century Fox Film Corp v Newzbin Ltd [2010] FSR 21. ↑
The Oxford English Dictionary, 2nd ed (1989), vol 3 at 1016-1017. ↑
The Oxford English Dictionary, 2nd ed (1989), vol 3 at 1017. ↑
Amstrad Consumer Electronics plc v The British Phonographic Industry Ltd [1986] FSR 159 at 207 per Lawton LJ, approved in CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013 at 1055 per Lord Templeman. See also CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339 at 361 [38]. ↑
WEA International Inc v Hanimex Corporation Ltd (1987) 17 FCR 274 at 286-288. ↑
Recent examples include the Digital Economy Act 2010 (UK) (as to which see Garnett, Davies and Harbottle, Copinger and Skone James on Copyright, 16th ed (2011), vol 1 at 1223-1247) and the Copyright (Infringing File Sharing) Amendment Act 2011 (NZ). Also, see generally Suzor and Fitzgerald, "The Legitimacy of Graduated Response Schemes in Copyright Law", (2011) 34 University of New South Wales Law Journal 1. ↑
Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285. ↑
Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215. ↑
Roadshow Films Pty Ltd v iiNet Ltd (2011) 86 ALJR 205; 284 ALR 222; [2011] HCA 54. ↑
"Cinematograph film" is so defined in s 10(1) as to mean the aggregate of visual images embodied in an article or thing (including the associated sound track) which is capable, by use of that article or thing, of being shown as a moving picture. In the evidence, the expressions "motion picture" and "television show" were used as species of cinematograph film. ↑
See Keller v LED Technologies Pty Ltd (2010) 185 FCR 449 at 508‑509, 527‑528. ↑
See, for example, Ricketson and Creswell, The Law of Intellectual Property: Copyright, Designs & Confidential Information, (2002), s9.10, s13.160. ↑
(2001) 206 CLR 512 at 551 [84]; [2001] HCA 29. ↑
"Misfeasance and Non‑feasance in the Liability of Public Authorities", (1914) 30 Law Quarterly Review 276 at 278. ↑
"On Negligence and Deceit in the Law of Torts", (1910) 26 Law Quarterly Review 159. See also Wigmore, "A General Analysis of Tort‑Relations", (1895) 8 Harvard Law Review 377 at 386‑387. ↑
(2000) 205 CLR 254 at 264 [20], 270 [43], 292 [110]‑[111], 299‑300 [140]‑[141]; [2000] HCA 61. ↑
Landes and Posner, The Economic Structure of Intellectual Property Law, (2003) at 118‑119. ↑
Roadshow Films Pty Ltd
iiNet Limited
Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16
[1975] HCA 26
[1928] HCA 10
(2011) 194 FCR 285
(1975) 133 CLR 1
(1997) 191 CLR 140
(2010) 263 ALR 215
Appeal dismissed with costs.
(2005) 220 ALR 1
(2004) 218 CLR 273
(2009) 239 CLR 27
(2012) 86 ALJR 217
(1987) 17 FCR 274
(1928) 40 CLR 481
(1993) 176 CLR 480
(2006) 156 FCR 380
(1990) 26 FCR 53
(2011) 86 ALJR 205
(1964) 5 FLR 415
(1961) 3 FLR 146
(1996) 186 CLR 574
(1999) 164 ALR 239
(2010) 185 FCR 449
(2006) 226 CLR 161
(2001) 206 CLR 512
(2000) 205 CLR 254
(2011) 86 ALJR 14
(2007) 230 CLR 89
(2005) 224 CLR 193
[2011] HCA 48
[2012] HCA 3
[2009] HCA 41