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High Court finds for iiNet

posted Apr 19, 2012, 7:22 PM by Austin Carwardine   [ updated May 8, 2012, 5:55 PM ]
The High Court, on 20 April 2012, dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that iiNet, an internet service provider, had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs.

The High Court unanimously dismissed the appeal. The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts. For these reasons, the Court held that it could not be inferred from iiNet's inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants' films by its customers.

In these High Court proceedings, Carwardine Legal acted as instructing solicitor for Communications Alliance, which sought leave to be heard as amicus curiae. The Court granted that leave, and Comms Alliance made written and oral submissions to the Court at the hearing held in December 2011.  P.W. Flynn was counsel for Comms Alliance.  Comms Alliance's submissions were noted in the judgment of Gummow and Hayne JJ.