Roadshow Films Pty Ltd. v. iiNet Limited

In 2008 and 2009, iiNet Limited (iiNet) (defendant) was one of the largest internet service providers (ISPs) in Australia: for a monthly fee, it provided internet access to approximately 490,000 users. From 2007–2009, many of iiNet’s users engaged in peer-to-peer file sharing. Some such sharing involved copyrighted films and television shows, the rights to which were owned by 34 Australian and US companies (plaintiffs). In 2007, the Australian Federation Against Copyright Theft, an entity that represented copyright owners including Roadshow Films Pty Ltd. (collectively, AFACT), began gathering evidence that iiNet’s users were infringing copyrights by sharing works. In July 2008, AFACT began sending iiNet letters informing it that some of its users were engaged in illegal copying. The letters asked iiNet to take action to halt future infringement. AFACT sent these notices, some of which attached supporting data, for over a year. Although iiNet responded to the notices, it never suspended or terminated any user accounts. In late 2008, AFACT sued iiNet on a theory of secondary liability, arguing that its failure to take action authorized its users’ copyright infringement. iiNet argued that its behavior did not amount to authorization and also invoked the Copyright Act’s safe-harbor provision, which limited the remedies available against ISPs for their users’ behavior. The lower court concluded that iiNet did not qualify for the safe harbor because it had never implemented a policy under which repeat infringers would be subject to account termination. On appeal, iiNet deprioritized the safe-harbor assertion, focusing its response on the argument that it had not authorized any infringement.