AFACT v iiNet: A summary of Justice Cowdroy's decision

A summary of the statement provided to journalists on Justice Cowdroy's reasons for finding in iiNet's favour

A summary of the statement provided to journalists on Justice Cowdroy's reasons for finding in iiNet's favour:

"The decision in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the means for infringement but, unlike those decisions, I find the mere provision of access to the Internet is not the means of infringement. There does not appear to be any way to infringe the applicant's copyright from the mere use of the internet. Rather, the means by which the applicant's copying is infringed is in iiNet users' use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system."

"Secondly, I find that as a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to section 101 (1A)(a) of the Copyright Act, nor in the circumstances of this case is it a reasonable step pursuant to section 101 (1A)(c) of the Copyright Act. The reason for this finding is complicated and lengthy and is not suitable for reduction to a short summary for present purposes so I shall refrain from attempting to do so.

"Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

"Consequently, I find that the applications AMENDED APPLICATION before me must fail."

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Tags iiNetAustralian Federation Against Copyright Theft (AFACT)AFACT v iiNetJustice Cowdroy

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