The Australian High Court has ruled in favour of an ISP which failed to terminate access to the Internet for those of its customers engaged in copyright infringement using the BitTorrent protocol.

In Roadshow Films v iiNet, various owners of copyright in films sued the ISP on the basis that it “authorized” the copyright infringements of its customers.  Under s.101(1A) of Australian copyright legislation, the issue of whether a person has authorized an infringement by another is determined by considering various factors, including:

(a) the extent to which the person has power to prevent the infringement;
(b) the nature of the relationship between the person and the infringer; and
(c) whether the person took reasonable steps to prevent the infringement.

The first of these factors was determinative.  The High Court ruled that, to be liable for the infringement of another, a person “must have a power to prevent the primary infringements”.

In this case, the ISP “had no direct technical power at its disposal” to prevent a customer from using the BitTorrent system to download the films.  At most, the ISP “could only ensure that result indirectly”, by terminating its contractual relationship with the customer.  This indirect power was largely ineffective, because “on receiving a threat of such termination, it was possible for a customer to engage another ISP for access to the internet” – a fact which highlights the limitations on the ISP’s power to prevent infringements, and explains why it could not be held liable for them.