ISP liability for end-user copyright infringements: the High Court decision in Roadshow Films v iiNet

In Roadshow Films v iiNet, the High Court unanimously held that iiNet was not liable for copyright infringements committed by its subscribers by means of the BitTorrent peer-to-peer file-sharing system. While the two judgments delivered by the High Court have clarified the extent to which ISPs may be liable for end-user infringements, they have created considerable legal uncertainty about authorisation liability, which is the main Australian doctrine under which a person may be found liable for the infringing conduct of another person. This article explains and analyses the two judgments delivered by the High Court in iiNet, focussing on the implications of the decision for ISPs, and for authorisation liability more generally. The evidence establishes that detection ⋯ followed by warning over three occasions and eventual discontinuance of Internet access will succeed in strongly alleviating the problem of Internet piracy. EMI Records (Ireland) Ltd v UPC Communications Ireland Ltd [2010] IEHC 377 at [71] per Charleton J. Was it a reasonable step to require of iiNet that it monitor continually the activities of IP addresses to provide precise details of primary infringements that had been committed, and then take further steps to forestall further infringements? Warnings might or might not have that effect. Evidence was lacking of likely behaviour in that respect by users of ISP facilities. Roadshow Films Pty Ltd v iiNet Ltd ((2012) 286 ALR 466, 498) per Gummow and Hayne JJ.