Indifference and Secondary Liability for Copyright Infringement
Ethics and Business Law
Date of this version
Copyright infringement, secondary liability, internet service providers, Australian High Court
Online infringements of copyright have been rampant for decades and shows no signs of abating. Owners of copyrighted films, music and books have attempted to hold infringers liable, but the expense of enforcing their rights against individual infringers is prohibitive. A more effective method of preventing infringement is to attempt to hold online intermediaries, such as Internet Service Providers (ISPs), secondarily liable for the primary infringements of their subscribers. Theories of contributory infringement, vicarious liability and inducement liability all rely on affirmative acts by intermediaries that facilitate infringement by others. In Roadshow Films Pty Limited v iiNet Limited, the Australian High Court considered whether an ISP’s indifference to primary infringements by its subscribers would make the ISP secondarily liable for “authorising” the infringements under Australia’s Copyright Act. The High Court unanimously ruled that the ISP was not secondarily liable for its indifference – despite knowing of specific acts of infringement and having ongoing control over its users’ accounts. The decision has important legal and public policy implications for secondary liability for Internet intermediaries in Australia and worldwide. The High Court decision and its ramifications are discussed in this article.
Santa Clara High Technology Law Journal
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