FEDERAL COURT OF AUSTRALIA

Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24SUMMARY

Citation: Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010]FCA 24Parties:

Roadshow Films Pty Ltd (ACN 100 746 870) and theparties in the attached Schedule I v iiNet Limited (ACN068 628 937)

File number: NSD 1802 of 2008Judge:

COWDROY J

Date of judgment: 4 February 2010

Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24

SUMMARY

In accordance with the practice of the Federal Court in some cases of publicinterest, importance or complexity, the following summary has been prepared toaccompany the orders made today. This summary is intended to assist in understandingthe outcome of this proceeding and is not a complete statement of the conclusionsreached by the Court. The only authoritative statement of the Court's reasons is thatcontained in the published reasons for judgment which will be available on the internetat www.fedcourt.gov.au.

The judgment in this proceeding is necessarily complicated both as to fact and law. Itis also lengthy, running for 636 paragraphs and almost 200 pages. I have decided to provideshort oral reasons for the judgment which I am presently to hand down. These reasons are notintended to be a substitute for reading the judgment itself which will be accessible online thismorning.

This proceeding raises the question whether an internet service provider or ISPauthorises the infringement of copyright of its users or subscribers when they downloadcinematograph films in a manner which infringes copyright. In Australian copyright law, aperson who authorises the infringement of copyright is treated as if they themselves infringedcopyright directly.

This proceeding has attracted widespread interest both here in Australia and abroad,and both within the legal community and the general public. So much so that I understandthis is the first Australian trial to be twittered or tweeted. I granted approval for this to occurin view of the public interest in the proceeding, and it seems rather fitting for a copyright trialinvolving the internet.

That this trial should have attracted such attention is unsurprising, given the subjectmatter. As far as I am aware, this trial, involving suit against an ISP claiming copyrightinfringement on its part due to alleged authorisation of the copyright infringement of its usersor subscribers, is the first trial of its kind in the world to proceed to hearing and judgment.

The 34 applicants who have instituted this claim represent the major motion picturestudios both in Australia and the United States. They have brought this proceeding against

iiNet which is the third largest ISP in Australia. An organisation known as the AustralianFederation Against Copyright Theft or AFACT has, on behalf of the applicants, beenprominent in the conduct of the claim.

AFACT employed a company known as DtecNet to investigate copyrightinfringement occurring by means of a peer to peer system known as the BitTorrent protocolby subscribers and users of iiNet’s services. The information generated from theseinvestigations was then sent to iiNet by AFACT, with a demand that iiNet take action to stopthe infringements occurring. The measures which AFACT requested iiNet perform werenever precisely elucidated. However, as the evidence at trial indicated, AFACT wanted iiNetto send a warning to the subscriber who was allegedly infringing. If a warning was notsufficient to stop the infringement, AFACT intended that iiNet suspend the internet service of that subscriber. If the subscriber remained unco-operative, termination of the internet servicewas sought as the ultimate sanction. In addition, or in the alternative, the applicants suggestedthat iiNet should block certain websites.

The evidence of infringement gathered by AFACT utilised the BitTorrent protocol, ablueprint for a highly efficient and effective mechanism to distribute large quantities of data.This protocol was created in 2001. It has been used, or more accurately, the constituent partsof the protocol (such as the client, tracker and .torrent files) have been used by thoseaccessing the internet through iiNet’s facilities (the ‘iiNet users’) to download the applicants’films and television shows in a manner which infringes copyright. I shall refer to theconstituent parts of the BitTorrent protocol together as the BitTorrent system.

The critical issue in this proceeding was whether iiNet, by failing to take any steps tostop infringing conduct, authorised the copyright infringement of certain iiNet users.

The first step in making a finding of authorisation was to determine whether certainiiNet users infringed copyright. I have found that they have. However, in reaching thatfinding, I have found that the number of infringements that have occurred are significantlyfewer than the number alleged by the applicants. This follows from my finding that, on theevidence and on a proper interpretation of the law, a person makes each film available onlineonly once through the BitTorrent system and electronically transmits each film only oncethrough that system. This excludes the possible case of a person who might repeatedlydownload the same file, but no evidence was presented of such unusual and unlikely