iiNet: Disturbing Full Federal Court decision

iiNet: Disturbing Full Federal Court decision

The full court of the Federal Court handed down its decision in the iiNet case (on appeal from the judge at first instance) in February of this year.  While there’s a lot of the decision about which to be anxious if you’re a business, this statement by Emmett J cannot be correct:

The infringement in question is an infringement by the iiNet customer whose account is being used. An iiNet customer whose account is being used to make Films available online cannot deny responsibility for the way in which the iiNet service is used. The iiNet customer must accept responsibility for the way in which the service provided by iiNet to that customer is used. Infringement by an iiNet user of a computer attached, by means of a router or otherwise, to a modem to which an iiNet service is provided, is a use of the service provided by iiNet to that modem. An iiNet customer is infringing by permitting the use of the service for infringement. [at para 157]

Surely an iiNet customer is liable only if they are doing the infringement themselves or if they are authorising the infringement.  Mere coincidence of circumstances should not suffice.   If it did, why would they need to put out hundreds pages of judgment considering iiNet’s liability?

Jagot J makes a similar leap:

The first, which arises from the above discussion about collective punishment, is that I do not accept the validity of the distinction iiNet consistently sought to draw between iiNet customers and iiNet users. As iiNet’s CRA and other policies disclose, iiNet (at least in all respects other than copyright infringement) operates on the basis that the iiNet customer is taken to be responsible for the use of the customer’s service by any other person. The customer is taken to be responsible not only in terms of payment but also potential sanctions for misuse of the service including warnings, suspension and termination of the service. This basis of operation, reflected in the CRA and other iiNet policies, is a practical necessity given the way in which internet access is provided. It is also appropriate to operate on that basis in the copyright context. [at para 390, my emphasis]

On what basis can this emphasised sentence be justified?  Given that iiNet’s terms seek to identify customers and users, such a fusion might be justified for the purposes of analysing the contractual relationship between iiNet and a customer, but iiNet’s terms are incompetent to tar a customer with another user’s infringement under copyright law.

It is useful to note in this context, that in the few months since the decision a company related to one of the litigants (Sony) had its customer’s data taken in a widely publicised server cracking.  Judges should not be quick to discount the possibility that people’s wifi routers do get hacked from time to time.