Justice Cowdroy today handed iiNet a sound victory in the Australian ISP’s long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers.

The studios first dragged iiNet (and its chief executive Michael Malone, pictured) into the Federal Court back in November 2008, arguing that the ISP infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers copying films and TV shows over its network.

However, in a packed courtroom in Sydney today, Justice Cowdroy said he found that iiNet did not authorise the infringement of the studios’ copyright.

“The mere provision of access to the internet is not an authorisation of infringement,” he said.

Cowdroy made it clear that the means of infringing the studios’ copyright was the use by iiNet customers of the BitTorrent file-sharing system. “iiNet has no control over BitTorrent,” he said.

The judge added that the notification scheme proposed by the studios and their representative, the Australian Federation Against Copyright Theft (AFACT) for ISPs to notify their customers of a breach of copyright and take action such as suspending or terminating their accounts was not a reasonable process.

While the judge noted that his reasons for making the finding were “complicated and lengthy”, they hinged on the idea that iiNet had done no more than provide an internet service to its users.

This differed from the previous Kazaa case, Cowdroy said, in that the Kazaa organisation was encouraging its users to breach copyright.

Cowdroy noted separately that the Telecommunications Act would not have prevented iiNet from acting on the AFACT notices of infringement, as iiNet had claimed. However, he noted that this fact did not end up being relevant to the case as iiNet did not authorise a breach of copyright.

Similarly, Cowdroy noted iiNet did have a repeat infringer policy for its customers, and would have been entitled to shelter under the ‘safe harbour’ provisions of the Copyright Act. However, similarly as iiNet did not authorise the infringement of copyright, this was not revelant to the case.

Ultimately, Cowdroy concluded that there was enough evidence to show widespread copyright infringement occurring “worldwide”. However, he said this cannot necessitate or compel a finding of authorisation of infringement of copyright in the case, and said the infringements of copyright were “significantly” less than AFACT had alleged.

The justice also found that when ISP customers used BitTorrent to download copyrighted material, they were making one copy only of the material. In addition, he pointed out BitTorrent itself could be used for legitimate purposes.

Cowdroy ordered that the studios’ application be dismissed and that they pay iiNet’s legal costs.

Image credit: iiNet

Related posts:

1. iiNet: Judgement vindicates our stance
2. iiNet wants it all in AFACT case
3. AFACT will appeal iiNet verdict
4. Conroy to examine iiTrial
5. iiNet wins video piracy trial

1. By Delimiter – iiNet: Judgement vindicates our stance on 04/02/2010 at 12:43 pm

   [...] Justice Cowdroy today handed iiNet a sound victory in the Australian ISP’s long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers using the BitTorrent file-sharing platform. [...]

2. By Delimiter – Pirate Party, EFA hail ‘common sense’ victory on 04/02/2010 at 1:19 pm

   [...] Justice Cowdroy today handed iiNet a sound victory in the Australian ISP’s long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers using the BitTorrent file-sharing platform. [...]

3. l33chr
   Posted 06/02/2010 at 2:32 am | Permalink | Reply

   Obvious outcome really, imagine if we started holding liquor stores liable for peoples abuse of alcohol?

4. By Delimiter – After 16 years, Michael Malone is still excited on 08/02/2010 at 7:38 am

   [...] is because it’s Thursday the 4th of February, 2010. Last Thursday. The day Malone and his team won a landmark BitTorrent piracy case in Australia’s Federal Court against a huge coalition of film and television [...]

5. By Delimiter – Tasmania’s dirty bunyip not the last on 23/02/2010 at 5:06 pm

   [...] film and television studios for illicitly downloading their content via BitTorrent. By the time Australia’s court system finally made up its mind what ISPs should do about the problem (the Federal Government still hasn’t), the issue has [...]

6. Vanessa Deagan
   Posted 31/03/2010 at 3:08 am | Permalink | Reply

   I’m proud to be an Australian. Common sense has prevailed. Let’s hope our friends over in the UK have a fighting chance against the Digital Economy Bill (and it being pushed into legislation using the undemocratic “wash-up” process) and the up and coming (and secretive) ACTA trade agreement (Anti Counterfeit Trade Agreement).

   I for one do not want to see AFTA and the media giants/copyright holders bring the gate-keepers of the Internet – deciding who can and cannot use it.

7. By Delimiter – iiNet wins video piracy trial on 04/02/2010 at 10:48 am

   [...] Update: A comprehensive overview of the judgement can be found here. [...]

8. By Delimiter – AFACT appeals to Govt over iiTrial on 04/02/2010 at 12:56 pm

   [...] Cowdroy today handed iiNet a sound victory in the Australian ISP’s long-running battle against a coalition of film and television studios, [...]

9. By Delimiter – iiTrial: Telstra welcomes “legal clarity” on 04/02/2010 at 1:57 pm

   [...] Justice Cowdroy today handed iiNet a sound victory in the Australian ISP’s long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers using the BitTorrent file-sharing platform. [...]

10. By Delimiter – Conroy to examine iiTrial on 04/02/2010 at 5:12 pm

    [...] Justice Cowdroy today handed iiNet a sound victory in the Australian ISP’s long-running battle against a coalition of film and television studios, finding that iiNet did not authorise copyright infringement carried out by its customers using the BitTorrent file-sharing platform. [...]

11. Deadbeat
    Posted 04/02/2010 at 10:14 pm | Permalink | Reply

    this is great news, the dinosaurs are dying.

12. Glenn Irvine
    Posted 04/02/2010 at 11:22 pm | Permalink | Reply

    I'd be hitting them for the costs Michael!

13. By Delimiter – Why I didn’t expect AFACT to appeal on 25/02/2010 at 1:16 pm

    [...] I do know that after listening to Justice Cowdroy’s conclusive judgement for iiNet and reading his reasons and the ongoing follow-up commentary on why AFACT lost, I had thought the [...]