The High Court of Australia (French CJ and Crennan J) this morning granted the applicant film companies special leave to appeal from the Full Court of the Federal Court’s decision in Roadshow Films v iiNet  FCAFC 23.
The iiNet case concerns the liability of an internet service provider (ISP) for copyright infringements of its users through unauthorised file-sharing on the BitTorrent peer-to-peer network. Both the trial judge and the Full Court held that the ISP, iiNet, was not liable for its users’ copyright infringement. The majority of the Full Court emphasised however, that liability was not established in the circumstances only because the film companies had not provided more detailed information and verification to support their allegations.
During the hearing of the special leave application, Justice Crennan’s questions suggest that Her Honour thought the question of ISP liability was one of general public importance. In particular, Her Honour was interested in the requisite level of knowledge that needs to be established before liability is found.
There is a clear global trend toward imposing greater obligations on ISPs to combat online copyright infringement through “graduated response” schemes established under administrative and industry codes. In particular, we note the following overseas developments:
It seems inevitable, whatever be the ultimate outcome of the iiNet case, that Australia will move, in the near to medium term, to impose on ISPs greater obligations to tackle online copyright infringement.
The appeal is expected to be heard later this year.
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