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Good news from Australia

[Later that morning: Note that this decision was released Feb. 4, so I’m only 3 weeks late with this.] Dennis Cowdroy of the federal court in Australia has decided that an ISP is not liable for copyright infringements by its users using Bittorrent.

I am not a lawyer, so I may not be getting this right. So, here are what seem to me to be the relevant paragraphs, which I’ve highly abridged:

#9 The critical issue in this proceeding was whether iiNet , by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users.

#10 The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. …

#11 …I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons which I now refer to.

#12 Firstly, … 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.

#13 Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement…

#14 Thirdly, …The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

#15 Consequently, I find that the applicants’ Amended Application before me must fail…

Judge Cowdroy then considers issues that his findings made irrelevant, but since IANAL and IANA (I am not Australian), I have trouble understanding them. I think he’s saying that the Telecommunications Act and the Copyright Act would have held if the facts of the case had been different, and that iiNet’s “repeat infringer policy” was sufficiently strong to provide it with “safe harbour,” protecting it from liability.

He then summarizes:

#19 The result of this proceeding will disappoint the applicants. The evidence establishes that copyright infringement of the applicants’ films is occurring on a large scale, and I infer that such infringements are occurring worldwide. However, such fact does not necessitate or compel, and can never necessitate or compel, a finding of authorisation, merely because it is felt that ‘something must be done’ to stop the infringements. An ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright. It is only by means of the application of the BitTorrent system that copyright infringements are enabled, although it must be recognised that the BitTorrent system can be used for legitimate purposes as well. iiNet is not responsible if an iiNet user chooses to make use of that system to bring about copyright infringement.

#20 The law recognises no positive obligation on any person to protect the copyright of another…

Overall, this seems like a win for the Internet, but let me know if I’m getting this wrong…

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