An Australian judge has given the world's supporters of Internet freedom reason to heave a big sigh of relief. Judge J. Cowdroy of Sydney yesterday rejected an attempt by 34 film studios to make iiNet, Australia's third largest Internet Service provider, responsible for the copyright violations of a few of their users. The critical issue was whether iiNet was responsible for infringement because it failed to take any steps to stop infringing conduct. The judge said it wasn't. Two key statements in the summary:

* “The mere provision of access to the internet is not [providing] the ‘means’ of infringement.”
* “The law recognises no positive obligation on any person to protect the copyright of another.”

In an eloquent but fair rebuke to the copyright interests' ISP “responsibility” campaign, the judge concluded: “The result of this proceeding will disappoint the applicants. The evidence establishes that copyright infringement of the applicants’ films is occurring on a large scale, and I infer that such infringements are occurring worldwide. However, such fact does not necessitate or compel, and can never necessitate or compel, a finding [against the ISPs] merely because it is felt that ‘something must be done’ to stop the infringements. An ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright.”

A short summary of the 200-page long decision, written by the Judge in recognition of the global importance of the issue and of the need to make its reasonaing and results more accessible, is here.  

Attaboy, Cowdroy.

3 thoughts on “No to ISP Intermediary Liability Down Under

  1. Bravo.
    In today's spectrum of communication, content providers should include digital copyright infringement as one of the costs of doing business. If companies continue to create content and don't take this risk into consideration, they're in deep trouble.

  2. For the most part, I agree. However, like copyright laws, as soon as you fail to protect your content or fail to make efforts to protect it, then you enter into a gray area regarding use. Basically, if you don't care to protect it, someone else can become known for it, publicly (Apple fights these battles all the time). I'm sure most media and content creation companies take this risk into consideration. In that regard, I'm sure legal fees are included into the price of every piece of media sold.

  3. I think a great many practical absurdities will result by applying legal logic strictly. Which is why I believe that we (or at least I) need to think through the issue of primary liability of intermediaries more carefully.

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