Australian ISPs are not required to disconnect users for infringement

Australian ISPs are not required to disconnect users for infringement

Billy Barnes is a JD candidate at the University of Toronto.

Last week, the Federal Court of Australia published a highly anticipated judgment in Roadshow Films v. iiNet. iiNet is an Australian ISP accused of authorizing copyright infringement by creating a service by which it profited from infringement and by failing to take "reasonable measures" to prevent illegal downloading on its network. The Court held in favour of iiNet. One of the more interesting findings was that a notification and termination policy is not a reasonable measure to prevent copyright infringement.

The case, quickly

iiNet is an Australian ISP. There were 34 applicants, but the central player was the Australian Federation Against Copyright Theft (AFACT). AFACT conducted an investigation that determined illegal content was available through iiNet's internet service and was actually being shared on BitTorrent by iiNet customers. The judge accepted this evidence. He did not, however, accept the applicant's arguments that iiNet authorized infringement for three reasons. (1) iiNet did not provide or control the means of infringement. There is a distinction between the means (BitTorrent, in this case) and a necessary condition (internet access). (2) Notification and suspension of accounts is not a reasonable measure to prevent copyright infringement. (3) iiNet did not sanction, approve, or countenance infringement.

Reasonable measures

Section 101(1A) of the Australian Copyright Act directs the courts to consider (a) the extent of the person's power to prevent infringement, (b) the relationship of the infringer and alleged authorizor, (c) whether the person took reasonable steps to prevent the infringement.

This is a serious issue when one considers the type of power the typical user agreement gives an ISP over terminating an account. Generally, as with iiNet, there is a specific provision allowing the ISP to terminate an account used to infringe copyright. Is an ISP obligated to enforce voluntary contractual rights in favour of a third party? The Court held that it was not. The mere ability to interrupt an act of infringement is not "power to prevent infringement."

Under Australian case law, "power to prevent" is synonymous with "control". Just because a company provides a component necessary for infringement---and therefore could prevent it in the strictest sense---does not mean they have to act. There has to be an ability to prevent only the infringing uses of a technology that has legitimate uses as well. ISPs have only two potentially relevant powers: termination and notification.

Termination, it is easy to see, is not a delicate enough tool to meet this definition. Further, to terminate for infringement based on anything less than a court order would be unreasonable because an ISP cannot merely accept untested claims of infringement---even when backed up by data provided by copyright holders. Finally, even if infringement is proved to scientific certainty, suspension of an Internet account for an individual (and, in effect, a household) would be unreasonable if infringement was not the primary use of the account. Having found that termination is unacceptable, the Court found that notification is useless without a threat to back it up.

This section of the judgment reads like a direct attack on the "three-strikes" rule. Particularly, given that the 10 pages of reasons why termination is not an appropriate measure is prefaced by a remark that the discussion is not necessary to the decision.

Relevance to Canada

Canada already has a case on whether ISPs authorize infringement. But SOCAN sought royalties, not termination of user accounts and the question of what reasonable measures an ISP might be obliged to take was left open (notably the "notice and takedown" approach). The Court was also careful to soften its finding on the connection between knowledge and authorization: "The knowledge that someone might be using neutral technology to violate copyright (as with the photocopier in the CCH case) is not necessarily sufficient to constitute authorization" [Italics in original, underlining added]. To my understanding, then, the question addressed in iiNet is still relevant to Canada.