Liability of ISPs for end-user copyright infringements: The first instance decision in Roadshow Films Pty Ltd v iiNet Ltd (No 3)

In Roadshow Films Pty Ltd v iiNet [2010] FCA 24, Cowdroy J held that the ISP, iiNet, was not liable for authorising infringements of copyright committed by its subscribers downloading films by means of the BitTorrent peer-to-peer (P2P) system. This article critically analyses the decision of the trial judge, which is now on appeal to the full federal court, pointing out that key aspects of the reasoning are contrary to established law on authorisation liability, as well as to the text of the Copyright Act. As the article explains, while there are good grounds for an appeal, the outcome in the appeal court is far from certain. The article also examines the extent to which an ISP should be held liable for the infringing activities of its subscribers, concluding that this is a complex issue best dealt with by the legislature. If ISPs are to be given greater responsibility for the infringing activities of their subscribers, there may be a need for procedural safeguards to protect against unjust suspensions or terminations of subscriber accounts. In any case, the existing law on the indirect liability of Internet intermediaries, such as ISPs, is manifestly inadequate, and requires reform.