Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 (24 February 2011)[1]
This is the second strike against Australian Federation Against Copyright Theft (AFACT), which is organising the litigation on behalf of copyright owners in the film production and distribution industry. The Federal Court decision in 2010 also rejected the claim iiNet had ‘authorised’ the copyright infringements of films by subscribers of the iiNet internet services, in Roadshow Films Pty Ltd v iiNet Limited (No. 3) (2010) 263 ALR 215; [2010] FCA 24 (4 February 2010).[2]
The majority decision by the Full Federal Court in February 2011 dismissed the appeal by the copyright holders against iiNet. The dissenting judgment of Jagot J. held that iiNet had ‘authorised’ the copyright infringements and that evidence from Mr Malone (iiNet's CEO) and another iiNet executive established that iiNet operated with a policy that it would not take any action on complaints by AFACT. The policy of iiNet being that it will only disconnect customers if an infringement of copyright is established in court proceedings against a customer; with other Australian ISPs appearing to adopting a similar policy.
AFACT have announced that it will seek the leave of the High Court of Australia. Leave to appeal is likely to be given because of the important legal and policy implications of the dispute. Although it will take until late 2011 or early 2012 for the appeal to proceed to hearing.
The decision of the High Court will resolve what is the liability of ISPs for the music and film file sharing by their customers under the Copyright Act 1968 (Cth). In any event after the decision of the High Court is handed down there is likely to be lobbying of the Federal Parliament to put in place a statutory regime to address the responsibilities of IPS in respect to illegal file sharing by their customers.
There are existing models of ‘takedown notices’ and ‘three strikes and your are out’ that are in place in other jurisdictions. What is yet to be placed on the negotiating table in Australia is the model being discussed in the United Kingdom in the public consultation as to ‘Online Infringement of Copyright (Initial Obligations) Cost Sharing’, which proposes that the costs of ISPs and the government regulator as regulator are to be split 75:25 between copyright owners and ISPs on the basis of the costs of an ISP which is an “efficient operator” as verified by the online regulator.[3]
The arguments as to the impact of the Internet on copyright holders’ revenue is a lively debate; the arguments will intensify when the issue is who should carry the costs of protecting the property rights in the films and music files that are being traded on the Internet.
[3] Department for Business Innovation & Skills (U.K.) http://webarchive.nationalarchives.gov.uk/20100512142933/http://www.bis.gov.uk/Consultations/online-infringement-of-copyright?cat=open
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