Roadshow Films Pty Ltd & others v iiNet Ltd (commonly known as AFACT v iiNet) was a case in the Federal and High Courts of Australia between members of the Australian Federation Against Copyright Theft (AFACT) and other movie and television studios and iiNet, Australia's third-largest Internet service provider (ISP) at the time. The alliance of 34 companies unsuccessfully claimed that iiNet authorised primary copyright infringement by failing to take reasonable steps to prevent its customers from downloading and sharing infringing copies of films and television programs using BitTorrent.
The trial court delivered judgment on 4 February 2010, dismissing the application and awarding costs to iiNet. An appeal to the Full Court of the Federal Court was dismissed by Emmett and Nicholas JJ (Jagot J dissenting). A subsequent appeal to the High Court was unanimously dismissed on 20 April 2012.
This case is important in Australian copyright law because it tests copyright law changes required in the Australia–United States Free Trade Agreement, and set a precedent for future law suits about the responsibility of Australian Internet service providers with regards to copyright infringement via their services.
Background
The case against iiNet was filed on 20 November 2008. Speaking on behalf of Village Roadshow, Universal Pictures, Warner Bros. Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc., the Seven Network and others, AFACT claimed that iiNet "had ignored requests from the companies to discipline its customers for breaking copyright laws." The managing director of iiNet, Michael Malone, claimed that "iiNet cannot disconnect a customer's phone line based on an allegation. The alleged offence needs to be pursued by the police and proven in the courts. iiNet would then be able to disconnect the service as it had been proven that the customer had breached our Customer Relations Agreement,"
The film companies' representative, AFACT, had conducted investigations into peer-to-peer-file-sharing network BitTorrent and found evidence that iiNet users had infringed the film companies' copyright. As of July 2008, AFACT sent notices to iiNet, providing information that iiNet users were using BitTorrent to infringe the copyright of the film companies. However, those notices had not enclosed AFACT's methodology. AFACT requested that iiNet prevent its users from infringing copyright through the suspension or termination of accounts of relevant users. The ISP did not act on AFACT's request, stating that, while copyright infringement was not approved, iiNet was not liable to take action on the basis of allegations.
On a directions hearing on 6 February 2009 AFACT claimed that the three major issues were; whether iiNet authorized the acts of infringement, whether iiNet was liable for the actions of its customers and whether the safe harbor provisions of the Copyright Act 1968 protected iiNet. In February 2009, iiNet revealed that it had received legal assistance from its competitor, Telstra.
In March 2009, Broadband Minister Stephen Conroy commented on iiNet's defence. Conroy said in response to iiNet as having "no idea if any customers are illegally downloading music" that this defence was "stunning" and "a classic". The Shadow Communications Minister Nick Minchin criticised the Minister for publicly discussing an active case and suggested he was deflecting attention away from proposed mandatory internet filtering.
More than A$1 million was paid to iiNet for legal costs in developing a defence that was not needed after AFACT made an adjustment to their claim. AFACT removed a claim called conversion which suggested iiNet was using copyright to its own advantage by allegedly allowing customers to illegally download copyrighted material. These changes also delayed the court case because iiNet was awarded more time to amend their defence.
Arguments
The plaintiffs, who are represented by Tony Bannon SC, started by arguing that iiNet is failing to enforce its own user agreements which stipulate that users are not to illegally download files. Early in the proceedings Bannon claimed that "there were 94,942 instances of iiNet customers making available online unauthorised copies" of movies during a 59-week period from 23 June 2008.
On day three it was revealed that iiNet received 1,356 notices requesting "takedown" action against customers, from various sources in a one-week period in early December 2008. General counsel Richard Cobden argued that "Acting on [all these] notifications is simply unreasonable and burdensome and inappropriate".