## Facts

- Roadshow Films Pty Ltd and related film and television copyright owners owned or exclusively licensed rights in numerous commercial works.
- iiNet Ltd was a major internet service provider whose customers used the BitTorrent peer-to-peer system to download and share the works without authorization (2007–2009).
- An industry anti-piracy group acting for the owners monitored BitTorrent activity and sent infringement notices to iiNet identifying alleged infringements and requesting that iiNet warn, suspend, or terminate the relevant customer accounts.
- iiNet’s customer terms prohibited illegal use, including infringement, but iiNet declined to implement account warnings or termination based solely on the notices and accompanying allegations.
- The owners sued iiNet alleging it “authorized” customers’ primary infringements under the Copyright Act 1968 (Cth) § 101(1); the trial court dismissed, the intermediate appellate court (majority) affirmed, and the High Court granted review.

## Issues

1. Whether iiNet “authorized” customers’ copyright infringements by providing internet access and failing to act on infringement notices.
2. How the statutory factors bearing on authorization, including iiNet’s power to prevent infringement and its relationship with customers, applied where BitTorrent activity occurred on customer connections.
3. Whether receipt of infringement notices made iiNet’s inaction tantamount to sanctioning or countenancing infringement.

## Decision

- The High Court unanimously dismissed the appeal and held iiNet did not authorize its customers’ infringements under § 101(1).
- The Court concluded that providing internet access, even with awareness of alleged infringements, did not itself establish authorization.
- iiNet’s only practical means of response—suspension or termination of accounts—was an indirect and blunt measure, and failure to deploy it on the notices as presented did not amount to authorization.
- Because authorization was not established, the Court found it unnecessary to decide the availability of statutory safe-harbor protections.

## Legal Principles

- Authorization requires more than furnishing a facility used for infringement combined with knowledge; it turns on whether the alleged authorizer sanctioned, approved, or exercised sufficient control over the infringing acts.
- Statutory authorization analysis includes consideration of the extent of the defendant’s power to prevent the infringing acts, the relationship between the defendant and the primary infringers, and the reasonableness of any steps the defendant could take.
- An ISP’s contractual ability to suspend or terminate service, without direct technical control over a protocol used by customers, may be insufficient to treat non-intervention as authorization, particularly where termination would cut off lawful uses and risks wrongful disconnection on contested allegations.
- Infringement notices that lack an agreed operational framework or sufficient basis to justify drastic action may not convert an ISP’s inaction into authorization.
- A “mere conduit” concept does not displace the core requirement that authorization be proved under the statutory authorization provisions.

## Conclusion

The High Court held that iiNet was not secondarily liable for its customers’ BitTorrent infringements because the evidence showed, at most, provision of access and receipt of allegations, not authorization grounded in control, sanctioning, or a reasonable capacity and duty to prevent the specific infringements.


Roadshow Films Pty Ltd. v. iiNet Ltd., (2012) 248 C.L.R. 42 (Austl. 2012)