Roadshow Films Pty Ltd v iiNet Limited

Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.

Quote from the initial case (appeal having just been “dismissed with costs.”)  Structural separation of the access and the application seems to have been part of the first decision.

It emphasises the importance to ISPs of *not* controlling (as common carriers should not) the activities of their users, to avoid the threat of “authorisation” and in Canada, the liability for broadcast regulations including associated levies (http://hamishmacewan.posterous.com/supreme-court-rules-isps-not-subject-to-br…

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