In 2008, a group of 34 television and movie companies instituted litigation seeking to prove that one of Australia’s largest ISPs was liable for “authorising” its users’ infringements. At its essence, the argument was that liability arose from iiNet’s decision not to pass on unsubstantiated allegations of infringement to its subscribers. If accepted, this would have effectively forced all Australian ISPs to take a more active role in copyright enforcement activities than the law had previously required. This argument received a considerable degree of traction in the Full Court of the Federal Court of Australia. Had its decision stood, it would have led to an unprecedented common law-driven graduated response. On ultimate appeal however, the High Court reined back that expansive interpretation and held that ISPs had no such positive duty to act. It suggested that, if the applicants wanted greater enforcement rights, they should seek them from the legislature. With reference to analogous privately-arranged graduated response schemes which operate in the US and Ireland, this paper considers whether the High Court was right to be chary of a common-law driven graduated response.
Available at: http://works.bepress.com/giblin/24/