Roadshow Films Pty Ltd v iiNet Limited (No. 3)

[2010] FCA 24

FEDERAL COURT OF AUSTRALIA

Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24

Citation:

Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24

Parties:

Roadshow Films Pty Ltd (ACN 100 746 870) and the parties in attached Schedule I v iiNet Limited (ACN 068 628 937)

File number:

NSD 1802 of 2008

Judge:

COWDROY J

Date of judgment:

4 February 2010

Catchwords:

INTELLECTUAL PROPERTY – Copyright Authorisation – Internet Service Provider provided internet to subscribers – allegations made to Internet Service Provider that those using its internet service were infringing copyright – whether persons using the internet service of the respondent infringed copyright by making available online, electronically transmitting and making copies of applicants’ films – whether the respondent authorised the infringement which occurred – whether the respondent provided the means of infringement – whether the respondent had the power to prevent the infringements which occurred – whether the respondent sanctioned, approved, countenanced the infringements which occurred – whether s 276 of the Telecommunications Act 1997 (Cth) led to a finding that the respondent did not have the power to prevent infringement

INTELLECTUAL PROPERTY – Copyright Authorisation – whether s 112E of the Copyright Act 1968 (Cth) prevented the respondent from being found to have authorised – whether the respondent had knowledge of the infringements which occurred

INTELLECTUAL PROPERTY – ‘Safe Harbour’ Provisions – whether the respondent complied with the provisions of Division 2AA of Part V of the Copyright Act 1968 (Cth) – what constitutes a repeat infringer policy – whether respondent had a repeat infringer policy – whether respondent had implemented repeat infringer policy

Legislation:

Broadcasting Services Act 1992 (Cth)
Copyright Act 1968 (Cth) ss 10, 14, 22(6), 22(6A), 37, 86, 100A, 101, 101(1A), 104, 112E, 115, 116AA, 116AC, 116AD, 116AE, 116AF, 116AG, 116AH(1), 116AH(2), 116AI, 119(a), 135ZWA
Copyright Amendment (Digital Agenda) Act 2000 (Cth)
Copyright Amendment (Digital Agenda) Bill 1999 (Cth)
Copyright Amendment Regulations 2004 (No. 1) (Cth)
Copyright, Designs and Patent Act 1988 (UK) s 45(1)
Copyright Legislation Amendment Act 2004 (Cth)
Copyright Regulations 1969 (Cth) reg 20B, 20I, 20J, 20K, 20L, 20M, 20X
Criminal Code 1995 (Cth) s 137.2
Digital Millennium Copyright Act 1998 (US) s 202
Telecommunications Act 1997 (Cth) ss 7, 87, 270, 276, 279, 280, 289, 290
Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 128(5)
Telecommunications (Interception and Access) Act 1979 (Cth)
United States Code (US) Title 17 s 512
US Free Trade Implementation Act 2004 (Cth)

Cases cited:

Apand Pty Limited v The Kettle Chip Company Pty Limited (1994) 62 FCR 474 followed
Australasian Performing Right Association Limited v Jain (1990) 26 FCR 53 followed/distinguished
Australasian Performing Right Association Ltd v Metro on George Pty Ltd and Others (2004) 61 IPR 57 followed/distinguished
Australian Tape Manufacturers Association Ltd and Others v The Commonwealth of Australia (1993) 177 CLR 480 followed
Avel Proprietary Limited v Multicoin Amusements Proprietary Limited and Another (1990) 171 CLR 88 followed
C J Redman Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173 referred to
Canadian Pacific Tobacco Limited and Another v Stapleton (1952) 86 CLR 1 referred to
CBS Songs Ltd and Others v Amstrad Consumer Electronics PLC and Another [1988] AC 1013 referred to
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389 distinguished
Computermate Products (Aust) Pty Ltd v Ozi-Soft Pty Ltd and Others (1988) 20 FCR 46 followed
Cooper v Universal Music Australia Pty Ltd and Others (2006) 156 FCR 380 followed/distinguished
Corbis Corporation v Amazon.com, Inc 351 FSupp2d 1090 (WD Wash 2004) considered
The Corporation of the City of Adelaide v The Australasian Performing Right Association Limited (1928) 40 CLR 481 considered
CSR Limited v Eddy (2006) 226 CLR 1 referred to
E-Talk Communications Pty Ltd & Anor v Universal Music Pty Ltd & Ors [2007] HCATrans 313 considered
Falcon v Famous Players Film Company [1926] 2 KB 474 cited
Harlan Ellison v Stephen Robertson 189 FSupp2d 1051 (CD Cal 2002) considered
Harlan Ellison v Steven Robertson 357 F3d 1072 (9th Cir 2004) considered
In Re: Aimster Copyright Litigation 334 F3d 643 (7th Cir 2003) questioned
In Re: Aimster Copyright Litigation 252 FSupp2d 634 (ND Ill 2002) considered
Moorhouse & Angus and Robertson (Publishers) Pty Ltd v University of New South Wales (1974) 3 ALR 1 distinguished
Nationwide News Pty Ltd and Others v Copyright Agency Limited (1996) 65 FCR 399 followed
Nominet UK v Diverse Internet Pty Ltd and Others (2004) 63 IPR 543 cited
Perfect 10, Inc v CCBill, LLC 340 FSupp2d 1077 (CD Cal 2004) considered
Perfect 10, Inc v CCBill, LLC 481 F3d 751 (9th Cir 2007) considered
Perfect 10, Inc v Cybernet Ventures, Inc 213 FSupp2d 1146 (CD Cal 2002) considered
Performing Right Society, Limited v Ciryl Theatrical Syndicate, Limited [1924] 1 KB 1 cited
Recording Industry Association of America Inc v Verizon Internet Services Inc 351 F3d 1229 (DC Cir 2003) referred to
Roadshow Films Pty Ltd v iiNet Limited (No 2) [2009] FCA 1391 referred to
Roadshow Films Pty Ltd and Others (ACN 100 746 870) v iiNet Limited (ACN 068 628 937) (2009) 81 IPR 99 referred to
Sony Corporation of America v Universal City Studios Inc 464 US 417 (1984) cited
TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) (2005) 145 FCR 35 cited
Telstra Corporation Limited v Australasian Performing Right Association Limited (1997) 191 CLR 140 discussed
Universal Music Australia Pty Ltd and Others v Cooper and Others (2005) 150 FCR 1 followed/distinguished
Universal Music Australia Pty Ltd and Others v Sharman License Holdings Ltd and Others (2005) 65 IPR 289 followed/distinguished
The University of New South Wales v Moorhouse and Another (1975) 133 CLR 1 followed
WEA International Inc and Another v Hanimex Corporation Ltd (1987) 17 FCR 274 followed

Date of hearing:

6 – 9, 12 – 15 October 2009, 2 – 6, 9 – 11, 13, 19, 24, 26 November 2009

Place:

SYDNEY

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

636

Counsel for the Applicants:

Mr A. J. L. Bannon SC with Mr J. M. Hennessy and Mr C. Dimitriadis

Solicitor for the Applicants:

Gilbert + Tobin

Counsel for the Respondent:

Mr R. Cobden SC with Mr R. P. L. Lancaster SC and Mr N. R. Murray

Solicitor for the Respondent:

Herbert Geer

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1802 of 2008

BETWEEN:

ROADSHOW FILMS PTY LTD (ACN 100 746 870)
First Applicant

THE PARTIES IN THE ATTACHED SCHEDULE I
Second Applicant to Thirty-Fourth Applicant

AND:

IINET LIMITED (ACN 068 628 937)
Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	4 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Amended Application be dismissed.

2.Subject to Order 3 and 4, the Applicants pay the costs of the Respondent, including costs thrown away as a result of the Applicants’ abandoning the primary infringement claim against the Respondent.

3.Any party or person applying for an order for costs different to that provided by Order 2 is to notify the Court within 14 days in which event Order 2 will be vacated and in lieu costs will be reserved.

4.If any application for costs is made as provided in Order 3 the parties and/or persons are to consult and prepare consent directions for the filing of submissions and, if required, for a hearing on costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1802 of 2008

BETWEEN:

ROADSHOW FILMS PTY LTD (ACN 100 746 870)
First Applicant

THE PARTIES IN THE ATTACHED SCHEDULE I
Second Applicant to Thirty-Fourth Applicant

AND:

IINET LIMITED (ACN 068 628 937)
Respondent

JUDGE:	COWDROY J
DATE:	4 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

PART A: INTRODUCTION

1. These proceedings primarily concern the question whether an Internet Service Provider (‘ISP’) authorises the copyright infringing acts of its subscribers or users of its services if those subscribers or users, without licence, download films in respect of which copyright is claimed. The judgment is structured as follows,

PART A: INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[1]
The parties........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[2]
The proceedings........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[5]
The Amended Application........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[6]
The FASOC........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[9]
The Amended Defence of the respondent........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[17]
The applicants’ Reply........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[37]
Structure of judgment........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[41]
PART B: TECHNICAL BACKGROUND........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[43]
The internet........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[44]
IP addresses and packets........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[44]
NAT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[49]
Physical facilities........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[52]
Dynamic IP addresses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[54]
The BitTorrent protocol........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[56]
BitTorrent client........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[58]
.torrent file........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[61]
Hashes........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[62]
Location of .torrent files........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[68]
The tracker........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[69]
Summary........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[70]
How are pieces shared?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[74]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[78]
PART C: THE EVIDENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[79]
Role of AFACT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[80]
AFACT witness – Aaron Guy Herps........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[83]
Downloading films and television programs........ ........ ........ ........ ........ ........ ........ ........ .....	[85]
AFACT witness – Gregory Donald Fraser........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[91]
AFACT witness – Neil Kevin Gane........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[93]
Evidence of copyright infringement........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[94]
Investigations of online piracy in Australia........ ........ ........ ........ ........ ........ ........ ........ ......	[96]
Expert witness – Nigel John Carson........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[105]
DtecNet witness – Thomas John Sehested........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[109]
DtecNet witness – Kristian Lokkegaard........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[110]
Collection of data using DtecNet Agent........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[113]
Michael John Williams........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[114]
‘Repeat infringer bundles’........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[115]
Bundles involving the RC-20 accounts........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[116]
DNS Lookups........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[118]
The iiNet subscriber accounts........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[122]
Studio witnesses........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[126]
Respondent’s witness – Michael Martin Malone........ ........ ........ ........ ........ ........ ........ ........ .	[129]
Findings as to the credit of Mr Malone........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[132]
Westnet issue........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[137]
Repeat infringer policy........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[155]
Telco Act defence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[159]
Various other statements of Mr Malone........ ........ ........ ........ ........ ........ ........ .......	[163]
Prosecution of Mr Herps........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[167]
‘Compelling evidence’........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[172]
Freezone........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[181]
‘Robot’ notices........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[192]
Respondent’s witness – Stephen Joseph Dalby........ ........ ........ ........ ........ ........ ........ ........ ....	[193]
Credit of Mr Dalby........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[195]
Preparation of affidavit........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[197]
Lack of understanding of AFACT Notices........ ........ ........ ........ ........ ........ ........ ......	[203]
Telco Act issue........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[212]
Submissions regarding the respondent’s failure to call more witnesses........ ........ ........ ......	[216]
Respondent’s witness – David Buckingham........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[221]
The respondent’s financial interests – ‘The iiNet business model’........ ........ ........ ........ ..	[224]
Is ‘bandwidth’, ‘downloading’ or ‘quota use’ necessarily infringing?........ ........ ........ ........ ...	[239]
Proof of infringement – catalogue vs identified films........ ........ ........ ........ ........ ........ ........ ....	[251]
PART D: PRIMARY INFRINGEMENT........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[253]
The authorisation of acts, not of persons........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[258]
Nature of the primary infringements........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[264]
The dispute........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[270]
‘Make available online’ a substantial part of the film to the public........ ........ ........ ........ .....	[272]
Repeat infringers?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[276]
How DtecNet produces multiple allegations of infringement........ ........ ........ ........ ........ ..	[279]
Correct construction of ‘make available online’........ ........ ........ ........ ........ ........ ........ .......	[285]
‘Electronically transmit’ a substantial part of the film to the public........ ........ ........ ........ .....	[301]
‘Substantial part’........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[302]
‘To the public’........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[307]
The solution........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[310]
Who makes the communication?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[319]
Were the applicants’ investigators licensed?........ ........ ........ ........ ........ ........ ........ ........ .....	[326]
Studio witnesses’ evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[330]
Mr Gane’s evidence........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[334]
Moorhouse........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[338]
Did s 104 of the Copyright Act apply?........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[345]
Make a copy of a substantial part of a film........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[346]
Copies from BitTorrent........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[347]
Further copies made on physical media........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[349]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[356]
PART E1: AUTHORISATION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[357]
Judicial consideration of authorisation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[359]
Kazaa........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[360]
Cooper........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[363]
The ‘means’ of infringement........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[367]
Moorhouse........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[367]
Gibbs J........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[369]
Jacobs J (McTiernan ACJ agreeing)........ ........ ........ ........ ........ ........ ........ ........ ........ .	[376]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[381]
Importance of factual context in decisions following Moorhouse........ ........ ........ ........ ...	[383]
APRA cases........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[385]
Technology cases........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[389]
Did the respondent provide the ‘means’ of infringement?........ ........ ........ ........ ........ ........	[400]
Section 101(1A) considerations........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[415]
Section 101(1A)(a) Power to prevent........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[417]
Authority........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[418]
Did the respondent have the power to prevent the infringements?........ ........ ....	[424]
Applicants’ submissions that the respondent did have the power to prevent infringements........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[425]
The Court’s consideration........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[436]
Telco Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[443]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[444]
Section 101(1A)(b) Relationship........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[446]
Section 101(1A)(c) Reasonable steps........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[454]
What is the role of reasonable steps?........ ........ ........ ........ ........ ........ ........ ........ ....	[455]
Were there reasonable steps the respondent could have taken?........ ........ ......	[458]
Other considerations – Knowledge of infringements........ ........ ........ ........ ........ ........ ........ .....	[461]
Other considerations – Encouragement of infringement........ ........ ........ ........ ........ ........ .......	[473]
Failure to act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[475]
20 November 2008 press release........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[476]
‘Golden Girls advertisement’........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[480]
Encouragement to upgrade........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[485]
Other considerations – Inactivity or indifference........ ........ ........ ........ ........ ........ ........ ........ ..	[487]
Did the respondent sanction, approve, countenance the infringements of the iiNet users?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[493]
Approve........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[495]
Sanction........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[496]
Countenance........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[497]
Findings........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[500]
Conclusion on authorisation........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[505]
PART E2: THE TELCO ACT DEFENCE........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[508]
The Telco Act........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[511]
Operation of s 276........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[513]
Does the information required to be used satisfy s 276(1)(a)?........ ........ ........ ........ ........ ..	[517]
Does the information required to be used satisfy s 276(1)(b)?........ ........ ........ ........ ........ ..	[518]
Exceptions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[527]
Operation of s 279........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[528]
Operation of s 280........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[533]
Operation of s 290........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[540]
Operation of s 289........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[543]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[555]
PART E3: SECTION 112E OF THE COPYRIGHT ACT........ ........ ........ ........ ........ ........ ........	[556]
Section 112E........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[557]
Judicial Authority........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[560]
Kazaa........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....	[560]
Cooper 150 FCR 1........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .......	[563]
Cooper 156 FCR 380........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[565]
The Court’s interpretation of s 112E........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ......	[568]
Can the respondent take advantage of s 112E?........ ........ ........ ........ ........ ........ ........ ........ ....	[576]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[579]
PART F: SAFE HARBOUR PROVISIONS........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[580]
Interaction between the safe harbour provisions and copyright authorisation........ ........ ....	[585]
What is a repeat infringer policy?........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[590]
US precedent on safe harbor provisions........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[595]
Requirements of the policy........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[597]
Implementation of the policy........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....	[602]
Conclusions........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..	[607]
Did the respondent have a repeat infringer policy?........ ........ ........ ........ ........ ........ ........ ......	[611]
Has the respondent reasonably implemented such a policy?........ ........ ........ ........ ........ ........	[620]
Other issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .	[633]
Conclusion........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........	[634]
PART G: CONCLUSION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...	[635]
SCHEDULE I – THE APPLICANTS
SCHEDULE II – THE IDENTIFIED FILMS

The parties

1. In these proceedings there are 34 applicants which comprise most of the major film studios and their exclusive licensees in Australia. In these proceedings the applicants acted together as effectively one party.

2. Attached to this judgment as Schedule I is a list of the applicants. Each of the applicants are the owners and exclusive licensees of copyright in a large number of cinematograph films in the form of films and television programs (the Court will refer to both these television programs and films as ‘films’). A sample of 86 such films for which copyright ownership and subsistence has been proved and upon which the Court has heard evidence are identified in Schedule II of this judgment and these 86 films will be referred to as the ‘identified films’. When referring to the broader catalogue of films of the applicants, the term ‘catalogue films’ will be used. For further discussion of this issue, see [252] below.

3. The respondent, iiNet, is an ISP. Mr Malone, the CEO of the respondent and a witness in these proceedings, commenced the respondent’s business operations in his parent’s garage in Perth in October 1993. The business was incorporated in March 1995. In September 1999 the respondent became a public company and listed on the Australian Stock Exchange. At the time of its public listing, the respondent had approximately 19,000 subscribers. This has now risen to approximately 490,000 subscribers. Following Telstra and Optus, the respondent is the third largest ISP in Australia.

   The proceedings

4. The proceedings commenced on 20 November 2008 by way of Application and Statement of Claim. Subsequently, following amendments to both documents, the litigation was conducted upon the basis of an Amended Application and a Further Amended Statement of Claim (‘FASOC’) filed in the Federal Court Registry on 11 May 2009 pursuant to leave granted by the Court. The Court will now turn to these pleadings.

   The Amended Application

5. The Amended Application seeks declarations that the respondent has infringed the copyright of films contained in each of the applicants’ respective film catalogues by authorising the making in Australia of copies of, and by authorising the communication in Australia to the public of, the whole or a substantial part of those films without the licence of the applicants. Further, a declaration is sought that the respondent carried out such infringing acts flagrantly and that such infringements, together with other likely infringements, were conducted on a commercial scale for the purpose of s 115(5)(d) of the Copyright Act 1968 (‘the Copyright Act’).

6. By way of further relief, the applicants seek injunctions permanently restraining the respondent from infringing the copyright in any of the films contained in the catalogue of the applicants, and an order requiring the respondent to take all reasonable steps to disable access to any online location outside Australia that has been used to infringe the applicants’ copyright. An order is also sought requiring the respondent to terminate specified accounts of the respondent’s subscribers who have engaged in or who have continued to engage in acts of copyright infringement involving the applicants’ films.

7. Lastly, an order is sought for damages or, alternatively (at the election of the applicants), an account of profits pursuant to s 115(2) of the Copyright Act; additional damages pursuant to s 115(4) of the Copyright Act (applicable to conduct which is found to be flagrant); relief under s 115(6) of the Copyright Act which entitles the Court to have regard to the likelihood of other infringements (as well as the proven infringement) in determining what relief should be granted; and costs and interest.

   The FASOC

8. The Court will now summarise the FASOC and, for convenience, the paragraphs referred to hereunder are those set out in such pleading.

9. Paragraphs 1-13 recite the relevant details of incorporation of each of the applicants and paragraph 14 refers to the incorporation of the respondent. Paragraphs 15-56 inclusive refer to the applicants’ claim that they are the owners or exclusive licensees of the films contained in their respective catalogues, that such films are cinematograph films and that copyright subsists in such films. Paragraphs 57 and 58 refer to the provision of internet services by the respondent to its subscribers.

10. The acts of ‘primary’ infringement (see [256] below) of copyright are alleged in paragraphs 59-62. In such paragraphs the applicants claim that from a date unknown to them, but at least since July 2008, the respondent’s subscribers and other persons accessing the internet by means of the respondent’s internet service (henceforth referred to together as the ‘iiNet users’) have, in Australia, whilst accessing the internet by means of the respondent’s internet services, ‘made available online’ to other persons; ‘electronically transmitted’ to other persons; and made copies of, the whole or a substantial part of the identified films and the catalogue films without their licence. Further, or alternatively, it is alleged that such iiNet users have copied such films and thereafter made further copies without licence on DVD or other physical storage media for the purpose of watching, storing or distributing those films.

11. Paragraphs 63-67 allege that the respondent authorised the infringement of the iiNet users. It is alleged that the respondent knew or had reason to suspect that the iiNet users were engaged in, and were likely to continue to engage in, such conduct; took no action in response to notifications sent on behalf of the applicants which claimed that iiNet users were engaging in the conduct referred to above; offered encouragement to iiNet users to engage in or to continue to engage in the conduct; failed to enforce the terms and conditions of its Customer Relationship Agreement (‘CRA’) by which its internet services were provided; continued to provide services to those subscribers who were engaging in the conduct complained of; and through the respondent’s inactivity and indifference, permitted a situation to develop and continue whereby iiNet users engaged in such conduct.

12. Paragraph 64 pleads in the alternative that the respondent had the power to prevent the infringements and continuing infringements from occurring; had a direct and commercial relationship with its subscribers which enabled it to take action against those subscribers who engaged in the infringing conduct; and yet took no steps or adequate steps to prevent or avoid infringement.

13. Paragraph 67A alleges that the respondent further, or in the alternative, has, in the course of providing its internet services, provided facilities for the intermediate and transient storage or, alternatively, caching of copyright material, namely the applicants’ films. Paragraph 67B claims that by reason thereof the respondent has made copies of the whole or a substantial part of the identified films and the catalogue films. Paragraph 67D alleges that the copies were made without the licence of the applicants and therefore the respondent has infringed the copyright in the identified films and the catalogue films. Such claim, being one of primary copyright infringement against the respondent, was abandoned by the applicants shortly before the hearing commenced on 6 October 2009. The applicants informed the Court of this fact in an email exchange on 30 September 2009.

14. Loss, damage and profits are claimed in paragraphs 68-74. The applicants claim that they have suffered or are likely to suffer loss and damage on a commercial scale and that by reason of the infringements the respondent has accrued or is likely to accrue profits to itself and its business.

15. Injunctive relief is sought in paragraphs 76-77 to restrain the respondent from engaging in the infringing activities.

    The Amended Defence of the respondent

16. Similarly to the applicants, the respondent was granted leave to file an Amended Defence on 8 May 2009. Such document was filed in the Federal Court Registry on 15 May 2009.

17. The respondent largely admits all matters regarding copyright subsisting in, and the applicants owning the copyright in, the identified films.

18. The respondent acknowledges that it provided at all relevant times, and continues to provide, telecommunications services to persons in Australia which are listed carriage services within the meaning of ss 7 and 16 of Telecommunications Act 1997 (Cth) (the ‘Telco Act’); says that such services were provided under terms and conditions of supply published by the respondent from time to time in its CRA; and that the provision of those services is subject to the statutory requirements of the Telco Act, the Telecommunications (Interception and Access) Act 1979 (Cth) (the ‘TIA Act’), the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) and the Broadcasting Services Act 1992 (Cth).

19. The respondent pleads that at all material times the services used by its subscribers and other persons in obtaining access to, and exchanging of data on, the internet were facilities for making or facilitating the making of communications within the meaning of s 112E of the Copyright Act. Further, the respondent pleads that at all material times such facilities or services were provided for transmitting, routing or providing connections for copyright material or for the intermediate and transient storage of copyright material in the course of transmission, routing or provision of connections within the meaning of s 116AC of the Copyright Act.

20. The respondent states that it provided its subscribers with access to the internet and that to enable access to the internet the respondent allocated IP addresses for use by those subscribers; that as part of such services it charged its subscribers fees applicable to the relevant plan to which the subscriber subscribed; and that it derived no commercial advantage from its subscribers over and above the payment for such services.

21. The respondent initially did not admit the allegations made in paragraphs 59 and 60 of the FASOC regarding the infringing conduct of the iiNet users. However, by the ‘Respondent’s Statement of Nature of Case’ filed by the respondent on 9 April 2009, the respondent made clear that it conceded that, for the purposes of this hearing, the evidence filed by the applicants by that date showed that iiNet users infringed copyright by ‘making the identified films available online’ and making copies of those films. The respondent maintained its non-admission in regards to further copying described in paragraph 60 of the FASOC and denied that the evidence proved that the iiNet users ‘electronically transmitted’ the identified films.

22. The respondent’s defence also alleges that if the infringing acts were committed, to the extent that those acts involved the activities of employees, agents, or other representatives of AFACT and/or of any of the applicants, such acts were done with the licence of the relevant applicants or alternatively were done in circumstances which, by virtue of the application of s 104 of the Copyright Act, did not constitute infringement of copyright.

23. As to the alleged authorisation by the respondent of the acts of the iiNet users referred to in paragraphs 63 and 64 of the FASOC, if such alleged infringing acts occurred, the respondent replies:

    In answer to paragraphs 63 and 64 of the Further Amended Statement of Claim, iiNet:

    (a)…

    (b)says that it knew at all material times that a proportion of the internet traffic exchanged via its facilities comprised data exchanged via the BitTorrent protocol;

    (c)says that is knew at all material times that copyright owners have alleged that a proportion of BitTorrent internet traffic exchanged over the internet generally included content which was likely to infringe copyright;

    (d)says that the BitTorrent protocol has, and is known by the applicants to have, many non-infringing uses and facilities;

24. The respondent pleads the following in further answer to paragraphs 63 and 64:

    (i)It [the respondent] did not create the BitTorrent protocol or any BitTorrent software;

    (ii)was, and is, not the operator of the BitTorrent protocol or any BitTorrent software;

    (iii)has not, and does not, promote the BitTorrent protocol or any BitTorrent software other than for purposes that do not involve the infringement of the applicants’ or any other party’s copyright;

    (iv)has not entered into any agreements with BitTorrent Inc. or any other BitTorrent related company;

    (v)does not have a direct or commercial relationship with BitTorrent Inc. or any other BitTorrent related companies;

    (vi)has not, and does not, encourage users to share files which infringe the applicants’ or any other party’s copyright;

    (vii)did not, and does not, support the BitTorrent protocol or any BitTorrent software except for use in a non-infringing manner;

25. The respondent says it knew from 2 July 2008 of the allegations of copyright infringement being made on behalf of the applicants and that it took action in relation to the allegations.

26. However, the respondent pleads that the allegations were ‘mere allegations of copyright infringement’ and that such allegations provided insufficient information to demonstrate the veracity of the allegations made and to allow the respondent to verify the allegations.

27. The respondent further pleads that it is a general purpose ISP and not a facility for ‘making available’, ‘electronically transmitting’ or copying cinematograph films. Further, the respondent pleads that it is required to comply with the legislation regulating communications passing over telecommunications networks and use of information relating to such communications as stipulated in Part 13 of the Telco Act and Chapter 2 of the TIA Act.

28. The respondent says it continued to provide its services to its subscribers subsequent to the allegations of copyright infringement being made against it and relies upon its contractual obligations with its subscribers. The respondent pleads that it did not sanction, approve or countenance the conduct of any iiNet user which would result in the infringement of copyright as alleged.

29. Further, the respondent pleads that it did not have any relevant power within the meaning of s 101(1A)(a) of the Copyright Act or otherwise to prevent alleged infringing acts by iiNet users. It states that it had no ‘relationship’ within the meaning of s 101(1A)(b) of the Copyright Act with the users of its services who are not subscribers; pleads if it did have a relationship, such relationship was neither direct nor commercial; and pleads it does not know the identity of those users.

30. Further, the respondent pleads that it took reasonable steps to prevent or avoid the alleged infringing acts. Otherwise, the allegations against the respondent are denied.

31. The respondent also raises specific defences under the Copyright Act. The respondent relies upon s 112E of the Copyright Act which provides:

    Communication by use of certain facilities

    A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio‑visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.

32. Further, or in the alternative, the respondent pleads that if copyright infringement against it is proved, the conduct relied upon by the applicants was category A activity within the meaning of s 116AC of the Copyright Act. Section 116AC is contained in Division 2AA of Part V of the Copyright Act (‘safe harbour provisions’) which limits the remedies available against carriage service providers for infringement of copyright if certain conditions are fulfilled by the carriage service provider.

33. The respondent pleads that it has complied with those conditions in that it has not initiated any transmission of the films nor made any substantive modifications to any films other than as part of a technical process.

34. Further, the respondent submits that it has adopted and reasonably implemented a policy that provides for termination in appropriate circumstances of repeat infringers (as required by condition 1 of item 1 of s 116AH(1) of the Copyright Act) and states that no relevant industry code exists (as referred to in condition 2 of item 1 of s 116AH(1) of the Copyright Act) to which the respondent can adhere.

35. In these circumstances, the respondent submits that even if the applicants were entitled to any relief (which is denied), such relief is limited to an order requiring the respondent to take reasonable steps to disable access to an online location outside Australia or requiring the respondent to terminate specified subscribers’ accounts.

    The applicants’ Reply

36. The Reply filed in answer to the respondent’s Defence (not the Amended Defence) acknowledges the respondent’s pleading which alleges that the respondent is a carriage service provider within the definition of that word in the Telco Act and that the respondent is engaged in the provision of telecommunications services, including internet services, to members of the public in Australia.

37. The applicants admit that the BitTorrent protocol exists and is capable of use in the manner described in the applicants’ particulars. The applicants also admit that there is no relevant industry code in force for the purpose of condition 2 of item 1 in the table in s 116AH(1) of the Copyright Act.

38. The applicants claim that if (which is denied) s 116AH(1) of the Copyright Act applies, the Court should make orders requiring the respondent to take all reasonable steps to disable access by iiNet users to online locations used to infringe copyright, and to require the respondent to terminate accounts of subscribers who have engaged in infringement or whose accounts have been used for infringement.

39. Otherwise the applicants join issue with the Defence. It should be noted that the filing of the Amended Defence did not require the filing of an Amended Reply.

    Structure of judgment

40. The Court is mindful of the substantial length of this judgment. However, given the length of the trial (some 20 days), the length and detail of the closing submissions (over 800 pages, excluding hundreds of pages of tables, graphs and spreadsheets), and the obvious importance of these proceedings to the law of copyright both in this country and possibly overseas, the Court believes that all submissions made and arguments raised ought to be decided to give certainty and finality to the litigation (pending any appeal).

41. To assist the consumption and comprehension of this lengthy judgment, it has been divided into a number of parts, each addressing specific issues. To some extent there may be repetition, but this is unavoidable if the various parts of the judgment are to be readily comprehended. Part A [1]-[42] is the current part, the introduction. Part B [43]-[78] provides a succinct explanation of the operation of the internet and of the BitTorrent protocol. A comprehension of both is necessary to understand the subsequent findings. Part C [79]-[252] discusses important evidentiary issues in the proceedings. In Part D [253]-[356] the Court discusses and makes findings on the issue of whether the applicants have been successful in proving that iiNet users infringed their copyright. Part E1 [357]-[507] concerns the pivotal issue of these proceedings, namely whether the respondent can be said to have authorised any infringement by the iiNet users. Part E2 [508]-[555] concerns the specific issue of whether the Telco Act prohibited the respondent from acting on the AFACT Notices. Part E3 [556]-[579] concerns the issue of whether s 112E of the Copyright Act assists the respondent in these proceedings. Part F [580]-[634] concerns the issue whether the respondent can take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act. Finally, in Part G [635]-[636], the Court makes its conclusions. Following the conclusion, there are two schedules attached to the judgment. The first (‘I’) lists the second to thirty-fourth applicants in these proceedings and the second (‘II’) lists the identified films and their owners and/or exclusive licensees.

    PART B: TECHNICAL BACKGROUND

1. This judgment proceeds into a significant amount of technical detail. In order to better understand the reasons given, a brief technical interlude into the operation of both the internet and the BitTorrent protocol is necessary. The Court will turn first to the internet and then to the BitTorrent protocol. The information in this technical interlude is derived from both the evidence given at trial and certain notorious facts of which the Court takes judicial notice.

   The internet

   IP addresses and packets

2. The internet is, in summary, a network of networks of computers. In order for those computers to be able to communicate with each other, they have to be speaking the same language. Protocols facilitate this process. Protocols could be described as languages or, alternatively, sets of rules for computers. If two computers obey these rules, they will be able to understand each other and communicate. The two primary protocols by which communication is effected between computers on the internet are the Internet Protocol (‘IP’), and the Transmission Control Protocol (‘TCP’). TCP is not relevant for these proceedings and will not be discussed further.

3. Data that is sent by means of the IP is ‘packetised’, that is, the data to be communicated is broken up into small packets and then sent by means of the IP. Each packet contains a header (akin to an envelope) containing information identifying the address or location from which the packet is sent and to which the packet is to be sent and other information not presently relevant. The packet itself contains the data which is akin to the letter within an envelope. The IP protocol effects communication between computers by means allocating addresses to the sending and receiving computers and then sending the packets of data from one address to another, in many ways analogous to the mail.

4. Such IP addresses are sold in blocks to ISPs, who then individually allocate them to their subscribers to enable the subscribers to connect to the internet. The body which allocates IP addresses to Australian ISPs is the Asia-Pacific Network Information Centre or APNIC. The identity of the ISP to which certain IP addresses have been allocated is public information.

5. The addresses used by the IP are known as IP addresses. They are a number rendered in binary code but, for the benefit of readability by persons, they are converted into a number of 4 groups of 3 digits separated by a full stop, for example, 192.168.111.123. The IP addresses in evidence in these proceedings are in this form.

6. In most situations, packets of data are not sent directly from one location to another, largely because each computer on the internet is not connected directly to every other computer on the internet. Rather, each computer is linked to other computers which are then in turn connected to other computers and so on. That is why the internet is not a network of computers; it is a network of networks of computers. Further, not all packets dispatched from one computer travel to the same destination by means of the same path.

   NAT

7. A further important concept is Network Address Translation (‘NAT’). This allows a router (which is essentially a device which can ‘route’ data between a network of computers) to take one internet connection and split it between a number of computers. Such routers also allow a number of computers to communicate with each other, creating a network. In this scenario, one internet connection comes through a modem into a router. That router then distributes the data to the computers which are connected to it via ethernet (network) cables, or, alternatively, wirelessly by means of Wi-Fi. This internal network prevails in many households and most businesses.

8. Each computer connected to the router is assigned an IP address by the router in the same format as that used in the internet. However such IP addresses are private, that is, they are known only to the computers on that network. The IP address of a particular computer is not broadcast to the internet. This allows the number of computers connected to the internet to be dramatically increased, because each computer does not need its own public IP address allocated by an ISP. Rather, the computer is connected to the internet through a router, with the router being assigned the public IP address by the ISP. This public IP address is the only address that is seen by other computers on the internet.

9. Therefore, one can know the location of a connection to the internet by means of a public IP address, but a public IP address does not necessarily relate to a specific person or specific computer. There may only be one computer connected to the internet through a public IP address. Equally, there may be hundreds. One cannot know which is the case from outside that particular network. For the balance of this judgment, unless otherwise indicated, the term IP address will refer to a public IP address.

   Physical facilities

10. As mentioned, IP addresses are allocated to subscribers by ISPs. ISPs also connect subscribers to the internet by means of physical infrastructure. Such infrastructure may be owned by multiple ISPs. For a subscriber of the respondent with an ADSL2+ (a type of internet connection) plan, that subscriber’s connection to the internet outside Australia, generally speaking, occurs by the means discussed below.

11. The household computer sends data to the router, which then forwards the data to the ADSL2+ modem. This ADSL2+ modem then transmits data down the copper phone lines to an exchange. The copper phone lines and exchange are owned by Telstra. Exchanges are local hubs of copper telephone wire connections. At the exchange, the copper wire terminates into a Digital Subscriber Line Access Multiplexer (‘DSLAM’), which is owned and provided by the respondent. The DSLAMs allow many copper connections to be aggregated together. The data is then sent from this exchange via the DSLAM to an iiNet data centre, which is a larger facility where connections from multiple exchanges are aggregated. Where the sending computer is based outside Sydney, for example, in Western Australia, the data would need another leap from the city data centre in question (for example, Perth) to Sydney, Sydney being the location of the connection to the rest of the world. This connection occurs from the Sydney data centre to the rest of the world by means of undersea optical fibre cables.

    Dynamic IP addresses

12. For most of the respondent’s subscribers, the IP address provided to them to access the internet is not fixed; rather, it is dynamically assigned. This means the IP address by which a computer is connected to the internet changes over time. The respondent provides a fixed (‘static’) IP address for all subscribers on business plans.

13. As already discussed, protocols are the means by which computers communicate. While TCP and IP have been mentioned, there are many others, for example, smtp (email), ftp (file transfer), http (world wide web), VOIP (voice) and BitTorrent. As already mentioned, the latter protocol is central to the current proceedings.

    The BitTorrent protocol

14. The BitTorrent protocol is essentially a scheme for a highly efficient and decentralised means of distributing data across the internet. The term ‘decentralised’ is used in this context in contradistinction to the traditional model of data distribution which is the client/server model. In that model one computer which has the data (the ‘server’) sends that data to another computer which requests it (the ‘client’), often by means of the http or ftp mentioned above. The BitTorrent protocol operates on a different basis. It operates on a ‘peer to peer’ (‘p2p’) basis whereby all the computers seeking data participate in the distribution of it.

15. The BitTorrent protocol is a set of rules, or, in layman’s terms, a blueprint. It specifies what needs to be done to implement a system of data distribution. It has a number of constituent parts which will be explained in more detail below.

    BitTorrent client

16. The first part of the BitTorrent protocol is the BitTorrent client. The BitTorrent client is a computer program or software which allows a person to access groups of computers sharing a particular .torrent (explained below) file. These groups of computers are known as ‘swarms’. Each computer in a swarm is known as a ‘peer’.

17. The BitTorrent client can have no operation by itself, as it needs to be provided with information in order to fulfil its role. This information comes from a .torrent file.

18. There are a number of BitTorrent clients provided free of charge from a variety of different organisations. The client referred to primarily in these proceedings was uTorrent (pronounced ‘you-torrent’) which is the most popular BitTorrent client. Other BitTorrent clients include Vuze, and, rather confusingly, the BitTorrent Client, which is the BitTorrent client of BitTorrent Inc, such company being founded by Bram Cohen who created the BitTorrent protocol in 2001. Each BitTorrent client operates in the same basic way, as it must comply with the requirements of the BitTorrent protocol in order to be able to function as a part of it. However, as well as these basic functions, different clients may have different graphical user interfaces, a search function for .torrent files, more advanced features and so on.

    .torrent file

19. The second part of the BitTorrent protocol is the .torrent file. The term ‘.torrent’ refers to a file extension. File extensions, such as .doc, .avi, .mp3, .pdf, .exe and so on do nothing more than associate a particular file with a particular purpose. For example, a .doc file is a document, .avi is a film file (the files in question in these proceedings were frequently .avi files), and .mp3 is a music file (the subject of the proceedings in Universal Music Australia Pty Ltd and Others v Cooper and Others (2005) 150 FCR 1 (‘Cooper 150 FCR 1’) and Universal Music Australia Pty Ltd and Others v Sharman License Holdings Ltd and Others (2005) 65 IPR 289 (‘Kazaa’)). This .torrent file contains the information necessary for the BitTorrent client to contact and participate in a swarm. It is important to emphasise that the .torrent file does not contain the underlying data of a film or television program. Rather, the .torrent file contains the name of the file sought, the size of the file, the hash value of the file, the hash value of the pieces of the file, and the location of the tracker. Before moving on to explain the tracker, the third part of the BitTorrent protocol, an aside into hashes is necessary.

    Hashes

20. The BitTorrent protocol operates by breaking up large files, such as film files (which are usually many hundreds of megabytes or a few gigabytes) into smaller parts (‘pieces’). This is similar in principle to the means by which data is transferred across the internet, as discussed at [45] above.

21. As an aside, a ‘byte’ is a term that refers to a certain amount of data, namely 8 ‘bits’. A bit is either a zero or a one, given that computers compute by means of binary code. A ‘kilobyte’ is 1024 bytes, a ‘megabyte’ is 1024 kilobytes and a ‘gigabyte’ is 1024 megabytes.

22. The size of the pieces to which BitTorrent breaks a file into varies, but the evidence suggests that film files are often divided into pieces which are 512 kilobytes. These pieces will usually be larger than packets, which, as mentioned, are the mechanism by which data is transferred across the internet.

23. Such pieces are shared between the individual peers in a swarm. Over time, pieces are requested and received by the BitTorrent client from various other peers and are ultimately assembled together like a large jigsaw into the film file. In order to ensure that each piece is received correctly, and that the data is not corrupted, the BitTorrent client consults hash values for each piece (‘piece hashes’). A hash value is a means of converting a large amount of data into a smaller value and it is a mathematical function of its input, that is, an identical input equals an identical hash. This means a hash can fulfil the function of an identifier of data. The input in this circumstance comes from the data of the file being shared as a whole or a piece of that file. As mentioned, the .torrent file contains the details of the piece hashes of all the individual pieces of the file in question. When the BitTorrent client receives a piece of the file from another peer in the swarm, it checks that the piece hash of the piece is identical to the piece hash for that piece in the .torrent file. If it is, the BitTorrent client knows that the piece is the correct piece and was correctly received. If it is not, it is discarded and the requested piece is sought again.

24. The ‘file hash’ is different from the piece hash. While the piece hash is a mathematical function of the data of a particular piece, the file hash is the mathematical function of the data of the underlying file as a whole being shared in a swarm. The term ‘file’ is being used in a general sense in this context. A particular swarm may be sharing one file (in the case of an .avi film) or a number of files (for example, the individual songs on a CD in .mp3 format). The file hash applies to what is being shared as a whole, and serves as a mechanism of identifying what file is in each swarm. For example, the film The Dark Knight might be available in many different digital versions (and therefore in many different swarms). One version may be high quality (for example Blu-Ray quality), one lower quality (for example, DVD quality). Each version, and therefore each swarm, will have its own file hash, even though the underlying content, for example, The Dark Knight, is the same. This results from the fact that while the film is the same in each example, the underlying data is different, and therefore the file hash (which is a function of the data) is different.

25. The file hash is used by the applicants to show that a particular swarm is sharing one of their films, because they can watch a copy of the film with that file hash, identify it as their own, and then know that any copy with that file hash would be the same, because if the underlying file were different it would have a different file hash.

    Location of .torrent files

26. The .torrent files are made available for download from a litany of sources. Some examples discussed in these proceedings include The Pirate Bay ( and MiniNova ( Such sites have a search function which enables a person to search for the file that they want, whether it be a film such as The Dark Knight, or a television program such as Lost. There are also private sites like Demonoid ( which provide a similar service, but only do so for registered members. There are also a number of specialist sites that provide .torrent files for specific interests. Not all .torrent files relate to copyright infringing material.

    The tracker

27. The third part of the BitTorrent protocol is the tracker. The tracker is a computer program on a server made available for contact by BitTorrent clients by means of a Universal Resource Locator (‘URL’) (in layman’s terms, a web address). As mentioned, such URL is found in the .torrent file. This tracker monitors the particular swarm to which it is attached and monitors the IP addresses of peers in the swarm. The BitTorrent client, when provided with the location of the tracker by the .torrent file, contacts the tracker to request the IP addresses of peers in the swarm. The tracker then provides that information to the BitTorrent client. This allows the BitTorrent client to contact those peers directly (by their IP address) and request pieces of the file from them, and share pieces of the file with them.

    Summary

28. To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.

29. Whilst such an analogy grossly oversimplifies the situation it will suffice for present purposes. It demonstrates that all of the constituent parts of the BitTorrent protocol must work together before a person can access the file sought. In this judgment the Court will refer to all the constituent parts together as the ‘BitTorrent system’.

30. Such analogy also demonstrates that a number of deliberate steps are required to be taken by a person to bring about the means to infringe the applicants’ copyright. The person must download a BitTorrent client like Vuze, seek out .torrent files related to copyright material from websites, and download those .torrent files and open them in their BitTorrent client. Thereafter, the person must maintain connection to the internet for as long as is necessary to download all the pieces. The length of this downloading process will depend on the size of the file, the number of peers in the swarm and the speed of those peers’ internet connections.

31. The BitTorrent protocol is able to efficiently distribute data because each peer is connected to many other peers, the file is split into many small pieces, and peers download pieces from other peers as well as uploading pieces. The BitTorrent logic operates so as to ensure that the rarest piece in a swarm is the first to be sought after, to average out the availability of pieces and minimise blockage or bottleneck which would occur if there were certain pieces of the file that many peers requested. By this mechanism the traditional problem with the client/server model is obviated. Under the client/server model, if there are many clients, the server has to provide the data to all of them which means that, given a fixed amount of capacity to provide data, that capacity has be shared amongst all the clients seeking that file. In layman’s terms, this means the more persons that seek a file, the slower each person receives it. However, in the BitTorrent model, generally speaking, the more people wanting a file and therefore the bigger the swarm, the faster each individual peer receives the file. It is a highly sophisticated and efficient means of distributing data.

    How are pieces shared?

32. For the purposes of these proceedings, a deeper understanding of the communication between the peers is required and such understanding will proceed by means of example.

33. In this example, the person has sought a .torrent file related to the film The Dark Knight: TheDarkKnight.avi. Such .torrent file was found on The Pirate Bay, and has been downloaded. The .torrent file has been opened in the BitTorrent client uTorrent. Upon opening the file, uTorrent will contact the tracker, seeking details about the swarm sharing that file, particularly the IP addresses of peers in that swarm. This initial contact is called ‘scraping’. Once uTorrent has the IP addresses it can contact those peers directly. It does so in a process called handshaking. Once this process is completed the peers can communicate directly.

34. The person in this scenario will not, initially, have any pieces of the TheDarkKnight.avi, but uTorrent will know because of the .torrent file all of the pieces it needs to obtain, and the piece hashes of those pieces. uTorrent will query the peers to which it is connected, in order to ascertain which pieces of the TheDarkKnight.avi those peers have. Some peers will have the whole of the TheDarkKnight.avi, and therefore all pieces will be available. These peers are known as ‘seeders’. Other peers may have less than the whole file because they are still in the process of downloading it, but they will still be able to share the pieces that they have.

35. Once the tracker is interrogated, uTorrent can determine which pieces are the rarest, and will therefore request those. As stated above, pieces are not downloaded in sequence; they are downloaded out of sequence, rarest first, and assembled together later. uTorrent will request a particular piece from another peer who is known to have it. This peer then decides whether or not to share it. Generally speaking, the only reason why a peer would refuse to share a piece would be that it had too many other peers connected to it. The assumption is in favour of sharing. If the peer decides to share the piece it will transmit the piece to the requesting peer’s computer. uTorrent will check the piece by means of the piece hash and, if such check is positive, accept the piece. Once this piece is received, uTorrent can then transmit that piece to other peers that request it. This process obviously occurs rapidly, with multiple peers and multiple pieces, and it is entirely automatic. From the point of view of the person, they simply see the file downloading, though they can, if desired, investigate in uTorrent the detail of the transmissions that are occurring. Over time uTorrent will receive all the pieces and the TheDarkKnight.avi will be assembled together. At this point in time the person will become a seeder, because they are sharing the whole file with the swarm. The default, that is, standard setting of uTorrent will result in the person sharing the file with the swarm until uTorrent is closed, or the .torrent file is removed from uTorrent. If the .torrent file is not removed and uTorrent is reopened, uTorrent will continue to share the file with the swarm.

    Conclusion

1. The above explanation and examples are sufficient to enable an understanding of the internet and the BitTorrent protocol for the purpose of these proceedings. With that understanding, the Court will now address the evidence.

   PART C: THE EVIDENCE

2. There has been an extensive amount of evidence placed before the Court in these proceedings. Evidence was given over ten days of the hearing. There were 30 affidavits read during the proceedings and 151 exhibits were tendered. It is impossible and unnecessary to refer to all the evidence that was placed before the Court. Suffice to say the Court has read and considered all the evidence. Each of the witnesses who have provided evidence will be discussed in the following part of the judgment, as well as the key evidentiary issues arising.

   Role of AFACT

3. The Australian Federation Against Copyright Theft (‘AFACT’), though not actually an applicant in these proceedings, has nonetheless played a central role in the collection of evidence on behalf of the applicants for this trial. AFACT is an organisation set up for the purposes of benefiting its members. Those members apparently include all of the applicants (or at least certain affiliate companies of each of the applicants) and other companies engaged in the film production industry.

4. The exact nature of the relationship between the applicants and AFACT is not clear. Mr Gane, the Executive Director of AFACT, suggested that there was no formal membership process by which one can become a member of AFACT, whether by application or agreement. Village Roadshow was an exception. What is clear is that the members of AFACT provide its budget and decide on its business plan, that is, what investigations and activities it will undertake.

5. The Motion Picture Association (‘MPA’) and the Motion Picture Association of America (‘MPAA’) have a membership of the major American film studios. They are not associated with AFACT by any formal written agreement. However, AFACT does report to the regional branch office of the MPA which is based in Singapore. In respect of operations in the Asian region, the Singapore office of the MPA prepares a business plan or budget for AFACT which is approved by the Los Angeles head office of the MPA. The Court considers that AFACT is, for relevant purposes, the local ‘franchise’ of the MPA, though with specific additional interaction with Australian entities that are not part of the MPA, such as Village Roadshow and related entities. Nevertheless, it has not been established that AFACT is an agent of the applicants; rather, its position vis-à-vis the applicants is a loose arrangement to provide certain services for the applicants.

   AFACT witness – Aaron Guy Herps

6. Mr Herps is the Manager of Digital Affairs of AFACT. Mr Herps has provided evidence of copyright infringing acts of iiNet users. He has sworn four affidavits in these proceedings. The Court accepts the evidence of Mr Herps and no challenge was made to any aspect of it by the respondent.

7. On 3 October 2007 Mr Herps signed up electronically for internet services from the respondent. He selected a ‘Home 7’ Plan at a cost of $129.95 per month. That is, Mr Herps became a subscriber of the respondent. To access the internet through his account Mr Herps purchased a computer which was connected to the internet via an ethernet cable and an ADSL modem. As far as the Court is aware, Mr Herps continues to be a subscriber of the respondent.

   Downloading films and television programs

8. On 27 June 2008 Mr Herps went to the MiniNova website and searched for .torrent files related to various films and television programs of the applicants. He noted that multiple .torrent files often existed for each title that he searched. It was his practice to select the specific .torrent file corresponding to the film which was identified as being the most popular (having the largest number of peers). Mr Herps then used uTorrent to participate in the swarms sharing these files, and by such means he downloaded the files to his computer. When the download was complete he became a seeder and kept the computer operating in the same state and continued to share the files with the swarm.

9. Mr Herps observed that from time to time other peers were downloading pieces from one or more of the files he was sharing with swarms. Such connections were visible to him in the uTorrent graphical user interface. After completing such process over a period of some months Mr Herps made copies (‘images’) of his hard drive which were exhibited before the Court. Mr Herps downloaded a total of six films.

10. Mr Herps swore a second affidavit involving a similar process to that described above, in respect of the period from 11 February 2009 until 20 February 2009. However, in this period his method had a crucial difference to the process described previously. During this period, by means of an IP address filter, Mr Herps was able to program uTorrent such that it would only connect to iiNet users. The filter was able to do so, given that, as already discussed, the IP addresses which had been allocated to the respondent (and therefore its subscribers) was publicly available information. After taking this step, Mr Herps repeated the process above of downloading .torrent files from MiniNova which related to films to which the applicants own copyright. The difference of the process enabled Mr Herps to be certain that he would only receive pieces of each film from iiNet users. His affidavit provides evidence of his downloading and sharing of three films in that period.

11. Mr Herps swore a third affidavit in reply to the expert witness of the respondent, Dr Caloyannides. Given that he was not called, no further reference need be made to that affidavit.

12. Mr Herps has also sworn a fourth affidavit in these proceedings which relates to issues of copyright substantiality. As the discussion at [310] and following demonstrates, these issues are irrelevant.

13. Mr Herps’ testimony is submitted to be evidence of copyright infringement of iiNet users on two grounds. First, by his direct infringement of the applicants’ copyright as a subscriber of the respondent; and second because his evidence recorded connections from other iiNet users who themselves must have been infringing. Whether Mr Herps’ actions were infringing will be considered in Part D in relation to the issue of whether he was licensed by the applicants to carry out acts which were copyright in relation to the films.

    AFACT witness – Gregory Donald Fraser

14. Mr Fraser is the Operations Manager of AFACT. Mr Fraser undertook the same task referred to by Mr Herps in his second affidavit. Mr Fraser became a subscriber of the respondent on a ‘Home 5’ Plan, sought out .torrent files from MiniNova relating to the applicants’ films and then proceeded to participate in swarms sharing those films. Like Mr Herps in his second affidavit, Mr Fraser only downloaded pieces of files of the applicants’ films from other iiNet users. Mr Fraser was not cross-examined.

15. As with Mr Herps, the applicants rely on Mr Fraser’s testimony as evidence of infringement by iiNet users both in the sense that he himself infringed and because he recorded connections from iiNet users who themselves were infringing. Similarly to Mr Herps, whether Mr Fraser was licensed by the applicants will be examined in Part D of this judgment.

    AFACT witness – Neil Kevin Gane

16. As mentioned, Mr Gane is the Executive Director of AFACT. Mr Gane has had oversight of AFACT’s actions in the gathering of evidence for these proceedings. Mr Herps and Mr Fraser answer to Mr Gane.

    Evidence of copyright infringement

17. Mr Gane testified that he was aware from his investigations and his own experience that the scale of copyright infringement of films and television programs taking place on the internet has increased substantially in recent years. He has attached two reports confirming this trend. The first is from a United Kingdom company, Envisional, and the second is from a German company, Ipoque. A report entitled ‘Internet Study 2007’ by Ipoque (made between August and September 2007) revealed that in Australia approximately 57% of internet traffic was p2p traffic and 73% of such traffic was associated with the BitTorrent protocol.

18. Mr Gane has also exhibited confidential MPAA reports prepared by Envisional providing an analysis of overall developments related to digital film piracy worldwide. The reports show that the number of persons using the BitTorrent protocol rose steadily over the period assessed and that the BitTorrent protocol remains the most popular p2p file-sharing mechanism.

    Investigations of online piracy in Australia

19. From August 2007 AFACT used the services of DtecNet Software APS (‘DtecNet’) to collect information concerning alleged copyright infringement by internet users in Australia. The contractual arrangement concerning this investigation appears to have been between DtecNet and the Singapore branch of the MPA rather than between AFACT and DtecNet. In June 2008 Mr Gane instructed DtecNet to prepare reports regarding the copyright infringing actions of iiNet users using the BitTorrent system. It would appear that in the period between September 2007 and June 2008, DtecNet investigated 190 Australian ISPs in relation to four different types of file-sharing protocols, including BitTorrent. It then narrowed its investigations to the BitTorrent protocol and targeted four Australian ISPs; namely Optus, Internode, Exetel and the respondent. It was not explained why these particular four ISPs were selected.

20. By email dated 2 July 2008 Mr Gane wrote to the respondent in what would become the first of many ‘AFACT Notices’. The email attached a letter which was entitled ‘Notice of Infringement of Copyright’. The letter, addressed to Mr Malone as Managing Director of iiNet relevantly stated:

    AFACT is associated with the Motion Picture Association (MPA), whose members include Buena Vista International Inc, Paramount Picture Corporation, Sony Pictures Releasing International Corporation, Twentieth Century Fox International Corporation, Universal International Films Inc, and Warner Bros. Pictures International…and their affiliates. AFACT represents Australian producers and/or distributors of cinematograph films and television shows, including affiliates of the member companies of the MPA. AFACT’s members and their affiliates are either the owners or exclusive licensees of copyright in Australia in the majority of commercially released motion pictures including movies and television shows. AFACT undertakes investigations of infringements of copyright in these movies and television shows.

    AFACT is currently investigating infringements of copyright in movies and television shows in Australia by customers of iiNet Limited (iiNet) through the use of the BitTorrent “peer-to-peer” protocol (BitTorrent). Information has been gathered about numerous infringements of copyright in motion pictures and television shows controlled by AFACT’s members, or their affiliates, by customers of iiNet (the Identified iiNet Customers). These infringements involve the communication to the public of unauthorised copies of the motion pictures and television shows shared with other internet users via BitTorrent.

    Attached is a spreadsheet containing the information relevant to infringing activities of the Identified iiNet Customers occurring between 23 June 2008 and 29 June 2008, including:

    a)The date and time infringements of copyright took place;

    b)The IP address used by the Identified iiNet Customers at the time of the infringements;

    c)The motion pictures and television shows in which copyright has been infringed; and

    d)The studio controlling the rights in the relevant motion pictures and television shows.

    A CD containing an electronic copy of the spreadsheet is enclosed with the hard copy of this letter.

21. The letter alleged that the spreadsheet attached showed that individual subscribers of the respondent, who were referred to in the AFACT Notice as ‘repeat infringers’, were involved in multiple infringements of copyright. The letter stated that AFACT was ‘unaware of any action taken by iiNet to prevent infringements of copyright in movies and television shows’. The letter relevantly continued:

    The failure to take any action to prevent infringements from occurring, in circumstances where iiNet knows that infringements of copyright are being committed by its customers, or would have reason to suspect that infringements are occurring from the volume and type of the activity involved, may constitute authorisation of copyright infringement by iiNet.

    AFACT and its members require iiNet to take the following action:

    1.Prevent the Identified iiNet Customers from continuing to infringe copyright in the motion pictures and television shows identified in the spreadsheet, or other motion pictures and television shows controlled in Australia by AFACT’s members and their affiliates; and

    2.Take any other action available under iiNet’s *Customer Relationship Agreement against the Identified iiNet Customers which is appropriate having regard to their conduct to date.

    Please acknowledge receipt of this letter and confirm when the above action has been taken.

22. The letter then attached extracts of the respondent’s CRA which had been downloaded from the respondent’s website and pursuant to which the respondent provided internet services to its subscribers. The relevant provisions attached to the AFACT Notice were as follows:

    1.Customer Relationship Agreement (CRA):

    4.USING THE SERVICE

    Comply With All Laws

    4.1In using the Service, you must comply with all laws and all directions by a Regulatory Authority and reasonable direction by us.

    Prohibited Uses

    4.2You must not use, or attempt to use, the Service:

    (a) to commit an offence, or to infringe another person’s rights;

    …

    (e) for illegal purpose or practices;

    or allow anybody else to do so.

    14.CANCELLING OR SUSPENDING THE SERVICE

    Cancellation or Suspension By Us

    14.2We may, without liability, immediately cancel, suspend or restrict the supply of the Service to you if:

    …

    (j) we reasonably suspect fraud or other illegal conduct by you or any other person in connection with the Service;

    …

    (l) we are required by law or in order to comply with an order, direction or request of a Regulatory Authority, an emergency services organisation or any other authority;

    …

    (n) providing the Service to you may be illegal; or we anticipate that it may become illegal;

    …

    (q) there is excessive or unusual usage of the Service;

    (r) We are allowed to under another provision of the CRA; or

    …

    14.3If we suspend the Service under clause 14.2, the we may later cancel the Service for the same or a different reason.

    2.iinet Website

    “Copyright Regulations and Illegal Content” from the iinet website located at

    ( page 2:

    NOTE: The hosting or posting of illegal or copyright material using an iinet [sic] service constitutes a breach of iinet [sic] contractual obligation [sic] under the Customer Relationship Agreement Sec 4.1 & Sec 4.2. Such a breach of contract may result in the suspension or termination of service without notice to the subscriber.

23. The spreadsheet attached to the AFACT Notice of 2 July 2008 contained a summary of alleged actions of iiNet users in infringing the copyright of the applicants in the period of 23 June 2008 to 29 June 2008 via the BitTorrent system. The spreadsheet extended over 13 pages of A4 sized paper. It was divided into 11 columns headed ‘Peer IP’, ‘Date and Time UTC’, ‘File Name Downloaded’, ‘Hash’, ‘Film/TV Title’, ‘Studio’, ‘% of file Shared’, ‘MB Downloaded’, ‘% of file Downloaded’, ‘Peer Hostname’ and ‘Country’.

24. In addition to being forwarded by email to the respondent, the spreadsheet and letter were also served by hand on the offices of the respondent located in Perth. Attached to the letter was a CD that contained an electronic version of the spreadsheet in the form of a Microsoft Excel file.

25. On 9 July 2008 a further AFACT Notice, in identical terms to that forwarded on 2 July 2008, was sent by Mr Gane to the respondent together with the same attachments as previously, although the spreadsheet was compiled in respect of the period from 30 June 2008 to 6 July 2008.

26. On 16 July 2008 a further letter was forwarded in similar terms. However, this letter also incorporated three DVDs covering the period commencing 23 June 2008 and ending 13 July 2008. These DVDs contained the electronic spreadsheet found on the CD, as well as the underlying data gathered by DtecNet in its investigations. That is, the DVDs contained the packets of data (and therefore pieces of the file) that the ‘DtecNet Agent’ (see [113] below) received from iiNet users. The DVDs also contained a greater amount of information in relation to each act of infringement alleged. Each included the information under the eleven columns at [100] as well as information entitled ‘PeerID’, ‘Peer client info’, ‘Target Port’ and ‘Fingerprint’.

27. Thereafter AFACT Notices were forwarded weekly to the respondent enclosing the same type of information in similar terms in respect of alleged copyright infringement in the respective week. The respondent does not challenge that in the period of 59 weeks from 23 June 2008 to 9 August 2009, the spreadsheets attached to the AFACT Notices recorded allegations of acts of infringement by the iiNet users. These AFACT Notices, and underlying data attached to them, are the primary evidence before the Court of the actions of iiNet users who are alleged to have infringed the copyright of the applicants.

    Expert witness – Nigel John Carson

28. Mr Carson is the Executive Manager of the Forensics Division at Ferrier Hodgson. Mr Carson was engaged as an expert witness for the applicants. His role was to provide two expert reports. The first was a technical investigation and explanation of the BitTorrent protocol and the second analysed the data gathered by DtecNet to verify independently its veracity. Both reports have been exhibited before the Court.

29. The Court found Mr Carson’s first report to be of great assistance in developing an understanding of the BitTorrent protocol, and much of its content has been used for the purposes of the technical discussion in Part B of this judgment regarding the BitTorrent protocol.

30. The second report of Mr Carson provided evidence that the DtecNet evidence is reliable, that is, that the underlying data of the AFACT Notices does demonstrate that the packets of data received by the ‘DtecNet Agent’ (discussed below at [113]) constituted pieces of the films of the applicants downloaded from iiNet users.

31. Mr Carson was a fair-minded and excellent witness. He provided full and forthright answers to all questions asked of him, including those that may not have provided evidence which favoured the applicants. Therefore, the Court considers him to be an impartial witness. The Court accepts the evidence he has provided in this hearing. No challenge was made to his evidence by the respondent, and indeed the respondent actually relies on such evidence.

    DtecNet witness – Thomas John Sehested

32. Mr Sehested is the Chief Executive Officer of DtecNet. Mr Sehested gave evidence of the investigation of iiNet users by DtecNet and the collection of data by DtecNet regarding iiNet users which commenced in about June 2008. Mr Sehested confirmed that DtecNet supplied AFACT with Microsoft Excel spreadsheets summarising the data collected from the iiNet users and provided hyperlinks allowing AFACT employees to access a secure FTP server (server allowing the downloading of material by means of the ftp discussed above at [55]) operated by DtecNet which contained the data collected by the DtecNet Agent relating to iiNet users.

    DtecNet witness – Kristian Lokkegaard

33. Mr Lokkegaard is the Chief Technology Officer of DtecNet and was responsible for the development of the proprietary software used by DtecNet to gather evidence for the current proceedings. Such software is known as the ‘DtecNet Agent’.

1. Mr Lokkegaard provided a confidential report to the Court which contained significant detail concerning the operation of the BitTorrent protocol and the operation of the DtecNet Agent. The Court made an order for confidentiality regarding the report, as was requested. However, a non-confidential version of the report was later exhibited (exhibit SS). The Court will rely on such non-confidential exhibit and Mr Lokkegaard’s affidavit (which was not confidential) in explaining the operation of the DtecNet Agent.

2. Mr Lokkegaard swore a second affidavit in reply to Dr Caloyannides. However, as with Mr Herps, as Dr Caloyannides was not called, there is no need to refer to such affidavit further.

   Collection of data using DtecNet Agent

3. The DtecNet Agent, being the software used to provide the information underlying the allegations of copyright infringement in the AFACT Notices, is, in essence, a BitTorrent client. However, it has been programmed to fulfil specific functions beyond that of a publicly available BitTorrent client, such as Vuze or uTorrent. The process by which the DtecNet Agent operated was as follows:

   a)An employee of DtecNet would identify .torrent files of interest based on content files which were supplied by the applicants/AFACT. The DtecNet Agent would then open the .torrent file.

   b)By opening the .torrent file the DtecNet Agent, like any BitTorrent client, was able to query the tracker; connect to peers in the swarm; and download pieces from those peers. Given that DtecNet was gathering evidence of iiNet users infringing, the DtecNet Agent employed an IP filter similar to that used by Mr Herps and Mr Fraser to ensure that it only connected to iiNet users. Initially, the DtecNet Agent downloaded one complete copy of the film sought to be investigated. This copy was then viewed to ensure that the film corresponded with one that was owned by the applicants. Given the information already discussed regarding hashes, this process established beyond doubt that a particular file hash corresponded with a film of the applicants.

   c)The DtecNet Agent then reconnected to iiNet users who had a copy of the file or parts of the file of interest and downloaded a piece of that file from those users. It then matched the piece downloaded with the piece hash through the hash checking process discussed in Part B. The DtecNet Agent then recorded information referrable to the peer from which it had downloaded that piece of the file. The DtecNet Agent was calibrated to download only one piece from each IP address and then disconnect from that IP address. It was set up to download a new piece from the same IP address every 24 hours.

   d)The DtecNet Agent was designed to create a running log of every activity and this included every single request sent between computers and every packet of data exchanged between those computers. Accordingly, every aspect of the connection and download was recorded and logged by the DtecNet Agent.

   e)All the information received or logged by the DtecNet Agent was recorded and stored securely on DtecNet’s servers. The servers were located in Copenhagen under Mr Lokkegaard’s supervision.

   f)Once recorded in DtecNet’s secure server, a DtecNet employee prepared a report containing some or all of the information recorded by the DtecNet Agent and incorporated that information into a Microsoft Excel spreadsheet which was provided to AFACT.

   Mr Lokkegaard stated that the data collection process carried out by the DtecNet Agent is highly accurate and reliable and is based on a confirmed connection and receipt of a piece of the file from a remote computer. As mentioned, the second report of Mr Carson independently verified such method.

   Michael John Williams

4. Mr Williams, solicitor for the applicants, provided numerous affidavits in these proceedings. His primary role was to collate evidence before the Court by means of the AFACT Notices and also, following discovery from the respondent, to highlight particular aspects of the evidence of infringements as detailed hereunder.

   ‘Repeat infringer bundles’

5. Exhibits MJW-1 and MJW-8 are spreadsheets that collate data from the information attached to the AFACT Notices by means of the ‘PeerID’. The PeerID is a number generated by the BitTorrent client upon the program initiating and it remains until the BitTorrent client is closed. As mentioned, the PeerID data was not included in the spreadsheets attached to the AFACT Notices. Rather, it was to be found in the DVDs attached to the AFACT Notices. This number is broadcast to the swarm, and thereby the PeerID of other peers in the swarm can be ascertained. As will be explained in more detail in Part D at [277]-[278], the PeerID is evidence of one computer involved in the infringement of a film or multiple films over a period of time. There was some cross-examination of Mr Williams on the question of the factors necessary to constitute repeat infringement. The Court finds that the definition of repeat infringement is a legal issue, and thus the opinions of any witnesses are irrelevant. The Court’s finding on such issue is found in Part D of this judgment.

   Bundles involving the RC-20 accounts

6. As will be explained in more detail at [122] and following below, during the process of discovery the respondent was ordered to provide data to the applicants in relation to 20 accounts of its subscribers (as described hereunder, these are referred to as the ‘RC-20 accounts’). Exhibits MJW-10, MJW-13, MJW-15 are each bundles which contain this data. MJW-15 is the entire history of communications, whether by telephone or email, between the respondent and each subscriber account. MJW-13 is the login/logout history and history of allocation of IP addresses to those 20 accounts over a period of time commencing with the first AFACT Notice. Finally, MJW-10 uses the IP history in MJW-13, taken in conjunction with the DtecNet evidence in the AFACT Notices, to produce spreadsheets of the alleged infringements that have occurred in relation to each of the 20 subscriber accounts.

7. Mr Williams was cross-examined particularly in relation to MJW-10. While the respondent was able to identify some anomalies in the generation of the spreadsheet, particularly in that some individual allegations of infringement appear to duplicate others in terms of time, as will become apparent from the Court’s discussion of the primary infringement issue in Part D below, these issues are an irrelevancy. Despite these anomalies, the Court finds that, on the whole, MJW-10 is reliable.

   DNS Lookups

8. Exhibit MJW-17 was created using a similar process as MJW-1 and MJW-8. However, rather than arranging the DtecNet data by means of the PeerID, MJW-17 organises the DtecNet data by means of the ‘Peer Hostname’ column. This is used to demonstrate that one peer hostname was responsible for multiple infringements.

9. The purpose of the exhibit and affidavit which attached it appears to be to demonstrate that it is possible to gather details from publicly available sources of information in relation to a static IP address, such that it can be known who is using a particular IP address and therefore, who is potentially infringing copyright. As mentioned, most accounts with the respondent have dynamic IP addresses allocated to them, but as already mentioned, it is possible to receive a static IP address for specific purposes, such as commercial enterprise.

10. The process by which this information is sought is by means of a reverse DNS lookup. ‘DNS’ stands for ‘domain name service’. Whenever one types a URL such as into a web browser one is actually typing what is known as a ‘domain name’. As already explained, computers communicate in the IP protocol by means of IP addresses. However, IP addresses are very difficult for people to remember. Domain names essentially render IP addresses in a form that is easy to remember. So, when one seeks out one is actually seeking out the IP address(es) associated with Google’s website. In order for a computer to actually connect to Google’s servers the domain name must be converted into an IP address. This occurs by means of a DNS lookup. This information, linking domain name to IP address, is stored in various servers around the world. The evidence of Mr Malone and Mr Carson establishes that this information is regularly updated, as it is crucial to communication over the internet.

11. However, the reverse is also possible, that is, it is possible to take an IP address and find a domain name. This information is not as crucial to the operation of the internet and thus it is less regularly updated. It was this information which was used to prepare the affidavit of Mr Williams and exhibit MJW-17. An affidavit sworn by Mr Malone suggests that the information relied upon by Mr Williams in preparing his affidavit on this issue was unreliable, and both Mr Carson and Mr Lokkegaard independently confirmed that reverse DNS lookups were not always reliable. Consequently, the Court finds that MJW-17, and the affidavit of Mr Williams attaching it, are unreliable and the Court will not rely on them. It does not appear that the applicants chose to make any particular submissions in closing in relation to MJW-17 and the corresponding affidavit.

    The iiNet subscriber accounts

12. During the course of the discovery process the applicants sought information concerning some subscribers of the respondent to enable the information relating to those accounts to be matched with the DtecNet evidence. On 15 June 2009 the Court made an order allowing the applicants to select a number of IP addresses and times as logged by the DtecNet Agent in its investigations, as well as some identified by Mr Herps and Mr Fraser from their investigations. This data was then provided to the respondent who examined the IP addresses and times provided in order to identify from them 20 unique subscriber accounts.

13. This process of matching IP address and time to a subscriber account is one of the key evidentiary issues in these proceedings, and it is dealt with in relation to the Telco Act defence in Part E2 of this judgment. ISPs generally keep records of those IP addresses that are associated with subscriber accounts at any given time. Thus, by knowing an IP address and time, a link can be made to a subscriber account, thereby identifying the account subscriber.

14. As it transpired, 45 IP addresses and times were needed to generate 20 unique subscriber accounts. This resulted from the fact that some IP addresses and times related to the same subscriber accounts (remembering that as IP addresses are assigned dynamically it is possible for one subscriber account to have multiple IP addresses over time). These subscriber accounts (the ‘RC-20 accounts’) are the most specific evidence of copyright infringement by iiNet users in these proceedings. In relation to each account, for the period from 1 July 2008, the respondent provided evidence of the allocation of IP addresses, login/logout details, time spent online and disconnection reasons. The respondent also provided all correspondence between the respondent and those subscriber accounts from 1 July 2008 to August 2009. The Court ordered that any personal information related to these accounts be redacted, such that it was impossible to link the data to any particular persons during these proceedings. The Court considered that it was appropriate for such information to remain confidential given that the subscribers of those accounts were not parties to these proceedings.

15. As already discussed, this evidence has been compared with the DtecNet evidence in MJW-10 to create a list of alleged infringements occurring on those accounts. Specific factual issues arising from such evidence will be addressed from time to time throughout the judgment.

    Studio witnesses

16. Each of the applicants have called witnesses (‘studio witnesses’) to confirm matters such as their ownership or exclusive licence of the identified films, the subsistence of copyright in such films and the absence of licence to any iiNet users to do the acts comprised in the copyright of the films.

17. Mr Phillipson testified for Village Roadshow and its related companies. Mr Wheeler testified for 20^th Century Fox and related companies. Mr Perry provided evidence regarding Paramount and its associated or related companies. Ms Solmon provided evidence regarding Columbia Pictures and related companies. Ms Reed provided evidence regarding Disney and its affiliated companies. Ms Garver testified on behalf of Universal and its numerous associated companies. Mr Kaplan testified for Warner Bros and related entities.

18. The studio witnesses were forthright in their evidence, and the Court found them to be reliable witnesses. The primary controversy arising during their cross-examination was their ability to provide evidence upon the question whether the AFACT investigators, Mr Herps and Mr Fraser, were licensed by the applicants to download the applicants’ films using their iiNet accounts. As will be apparent from the Court’s discussion in Part D of this judgment, though the Court finds the studio witnesses to be reliable, their evidence is not necessarily conclusive on this issue.

    Respondent’s witness – Michael Martin Malone

19. Mr Malone is the Managing Director and Chief Executive Officer of the respondent. His key responsibilities are related to customer service; the financial performance of the respondent; business planning and strategy; and corporate governance.

20. The undertaking of the respondent is substantial. As indicated, there are approximately 490,000 subscribers subscribing to the respondent and related entities, making it the third largest ISP in Australia. It operates call centres in Perth, Sydney, Auckland and Cape Town. There are approximately 600 customer service representatives in the respondent’s employ.

21. Mr Malone provided extensive evidence which will be referred to from time to time throughout the judgment. A key issue for present purposes is his credit as a witness.

    Findings as to the credit of Mr Malone

22. The applicants have mounted a vigorous challenge to the credibility of Mr Malone, asserting that he was neither a truthful nor reliable witness. It has been submitted that the Court should not rely on his evidence except where it is against his interests or it is independently corroborated. It is submitted that Mr Malone was determined to advocate the respondent’s cause at every opportunity and where he sensed a conflict between that cause and the truth, he was prepared to subordinate the latter in favour of the former.

23. The Court rejects the attack on the credit of Mr Malone. Mr Malone was an impressive witness who remained consistent (for the most part) in the evidence he gave during three days of gruelling and unnecessarily hostile cross-examination. The specific submissions made by the applicants will be addressed below. However, even in the circumstance that the Court finds against Mr Malone in relation to certain evidence he provided on specific issues, such findings do not lead the Court to make a generalised finding that he was an unreliable witness.

24. In so far as it is alleged that Mr Malone found it impossible to disassociate himself from the respondent’s ‘cause’, such a generalised allegation cannot be sustained. Certainly Mr Malone gave evidence supportive of the respondent’s position and this position was at odds with the applicants’ position, but the Court is not able to infer that in providing those answers they were not provided honestly, nor that they were necessarily wrong. Mr Malone’s demeanour was of someone who believed what he was saying without reservation. Whether Mr Malone’s beliefs in relation to the law and the respondent’s legal obligations were accurate is a distinct matter from whether he provided evidence of that which he honestly believed. Mr Malone may not have been a helpful witness to the applicants’ counsel, but that did not render Mr Malone an unhelpful witness to the Court. Mr Malone was occasionally asked questions which were technically imprecise and thus potentially misleading. His refusal to concede matters, his desire to seek clarification and his careful answers were not obfuscation as was submitted, but rather seemed to represent Mr Malone’s desire to be accurate in the evidence he provided to the Court and his refusal to be forced, by the manner of questioning, into giving evidence that he did not believe to be correct.

25. The Court rejects the submission that Mr Malone ‘like iiNet itself, has been compromised by his extreme views on the role and responsibilities of an ISP’. Merely because the views expressed by Mr Malone did not accord with the interests of the applicants does not render those views ‘extreme’. The flaw in the applicants’ submissions relating to the credit of Mr Malone is that they proceed on an assumption that the applicants have already succeeded in these proceedings; that the respondent has been found to have authorised copyright infringement; and that therefore resisting the applicants’ assertions, or refusing to co-operate with the applicants, inevitably leads to the result that Mr Malone’s opinions must be ‘extreme’. Such posture tended to convolute these proceedings. The purpose of these proceedings is to decide whether the respondent authorised. Mr Malone might be found to be wrong in his views, but that does not make his views or position, per se, ‘extreme’.

26. There were four specific issues, considered in detail hereunder, that the applicants submitted weighed against Mr Malone’s credit. The first was his actions in respect of the Westnet policy, the second his evidence regarding the respondent’s repeat infringer policy, the third his view as to whether the Telco Act prohibited the respondent from acting on the AFACT Notices, and finally various statements made by him which suggested that he had a disdainful or contemptuous attitude towards the interests of the applicants.

    Westnet issue

27. Westnet was an ISP that was acquired by the respondent on or about 8 May 2008. Westnet had a policy of passing on copyright infringement notifications to its subscribers. It is important to observe, for reasons discussed later, that such notifications were not AFACT Notices and that they differed from AFACT Notices in important respects. Substantial submissions have been made by the applicants on the issue of the Westnet policy.

28. Mr Malone learnt from Mr Bader (the Chief Technology Officer of the respondent) on or about 17 September 2008 that Westnet had received an email alleging copyright infringement which had been forwarded on to a Westnet subscriber. Mr Malone then learnt from the Chief Operations Manager of Westnet, Mr Cain, that in sending the notice to the subscriber no response was being sought. Rather, ‘it is merely a heads up’ from which the Court infers that Westnet was merely passing on allegations of infringement. This was confirmed by Mr Cain’s comment that ‘no notes, flags or records are kept on the customer’s account in relation to the notices and no further action (beyond forwarding the email) is taken’.

29. On 30 October 2008 Mr Malone raised with Mr Cain and Mr Ariti (the Chief Information Officer of the respondent) the question of Westnet’s practice in respect of AFACT Notices. The Court accepts that when Mr Malone referred in his evidence to AFACT Notices, he was in fact referring to copyright infringement notices generally, not the AFACT ones, since AFACT chose not to specifically investigate Westnet (see discussion at [96] above).

30. The Court finds that Mr Malone was unaware of the policy of Westnet prior to September 2008, and that he did not inquire, nor subsequently learn, precisely how long it had been in operation. Despite being asked, on the Court’s count, no fewer than 30 times in multiple different ways, Mr Malone refused to alter his answer that he did not know how long the Westnet policy had existed for, only that he knew that it existed from September 2008 when he was first made aware of it. While he could accept that it was likely that the Westnet policy existed before he found out about it in September, as he said, that did not mean he knew it existed before that date. The Court accepts Mr Malone’s answers.

1. In further cross-examination, Mr Malone made clear that the detail of the policy does not exist other than in his mind, though Mr Dalby was aware of it as well. He stated that the termination of subscriber accounts would occur in three circumstances: when the respondent was ordered to do so by a Court; when an iiNet user admitted to infringing copyright; and when an iiNet user was found by a Court or other authority to have infringed. Despite strident assertions to the contrary by the applicants, Mr Malone’s cross-examination does establish the third circumstance and it was not proffered only in re-examination as was incorrectly submitted in the applicants’ closing submissions in reply:

   What is the policy?---If someone is found to infringe on multiple occasions then we may disconnect them.

   …

   And what constitutes a repeat infringer is not specified?---It’s someone who is found to have been – someone is found by a court or other competent authority to have infringed.

   …

   What does the policy [say] about a customer admitting copyright infringement?---We’ve already confirmed that we don’t have a written policy, so the policy doesn’t say anything about it, but my position would be that if someone – they only way someone could be found to have infringed was where they whether were found so by a court or where they admitted to doing so.

   …

   So the policy you are referring to comes back to some court order, is it?---Yes.

   And that is it?---Yes.

   You will only – your policy is you won’t do anything without a court order?---Sorry, pardon me. The person would be found not by a court order, but by a court saying yes, that person is guilty.

   And again, I put it to you, you don’t have any repeat infringer policy, do you?---the policy would be, as I said, if someone is found to repeat an infringement – on multiple occasions, then we need to take action.

2. This policy, albeit not wholly written, would satisfy all the requirements outlined in In re Aimster 252 FSupp2d 634. The submissions by the applicants that such policy does not exist given that it is not recorded in writing; does not provide for prescriptive steps as stipulated in other ISP’s policies (for example Beagle and People Telecom which were exhibited before the Court); and is not communicated to iiNet’s users, fails in light of the US authority outlined above, particularly Corbis. The policy need not be written, since there is no statutory requirement that a policy be in written form. It need not provide clear steps leading to termination. It need not mention ‘repeat infringer’. Parliament, by the absence of any prescription for the policy, saw fit to grant CSPs significant latitude to formulate their own policies.

3. Further, the policy need not be communicated to a CSP’s users, given that, as explained, condition 1 of item 1 in s 116AH(1) excluded any requirement for the notification of that policy, unlike 17 USC §512(i)(1)(A) on which condition 1 was clearly modelled. Consequently, the Court rejects the premise of this line of questioning put to Mr Malone:

   Do you understand the purpose of the policy is to inform existing and potential customers as to what iiNet’s approach is?---That may be part of the policy’ purpose, yes.

   And what, you are not going to tell anybody whether they have breached the policy or not, until they have done something which is in breach of a policy they don’t know exists. Is that the position?---Sorry, the policy first is don’t infringe at all. There is a secondary step which is yes, you have infringed, how do we deal with multiple infringers.

4. As already mentioned, the Court does not draw any inferences from the fact that Mr Dalby did not mention the repeat infringer policy. As already referred to, he was not asked about it in cross-examination. This was, no doubt, a reasonable forensic decision on the part of the applicants, but it does not lead the Court to conclude that he had nothing to say which would have assisted Mr Malone.

5. The applicants’ reliance on Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd and Another (1991) 22 NSWLR 389 at 418-419 is misconceived. In that proceeding a Jones v Dunkel inference was drawn where there was no direct evidence on a topic at all in the hearing and a witness who would have been able to provide evidence in chief about the topic did not do so. This case is different. There is direct evidence of the repeat infringer policy from Mr Malone.

6. The Court finds that the respondent’s notification that copyright infringement may lead to termination of subscriber accounts (extracted above at [612]) put the iiNet users on sufficient notice that the respondent had a policy in relation to repeat copyright infringement, and that Mr Malone’s understanding of the factors necessary to take action under that policy is sufficient to constitute a repeat infringer policy for the purposes of condition 1 of item 1 of s 116AH(1).

   Has the respondent reasonably implemented such a policy?

7. Despite the above, while the Copyright Act gives CSPs significant latitude in the adoption of a repeat infringer policy and therefore its implementation, the text of item 1 condition 1 of s 116AH(1) in the Copyright Act suggests that the requirements of such policy are not entirely at the whim of the CSP:

   The carriage service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers. [emphasis added]

   The inclusion of the words ‘reasonably’ and ‘appropriate circumstances’ provide scope for the Court to adjudge a policy and its operation, and that objective element is particularly relevant in an assessment of whether a CSP has implemented a repeat infringer policy that has been adopted by it.

8. The Court finds that the respondent has reasonably implemented a repeat infringer policy. Mr Malone’s statement that he has not encountered a circumstance where he has been required to implement the repeat infringer policy was not a ‘joke’ (as it was put to him) but is entirely consistent with the policy, given that, as far as the Court is aware, no specific iiNet user has yet been found to have infringed copyright by a Court (before this judgment), and the respondent has not been ordered to terminate a subscriber account by a Court.

9. While the respondent’s requirement that an iiNet user be found to have repeatedly infringed copyright by a court sets a high bar before the respondent will effect an iiNet user’s termination, the Court believes that, in the circumstances of category A, this is an appropriate policy. In order to understand the Court’s approach, reference must first be had to other categories of activity.

10. First, it is to be noted that the Copyright Act and the Regulations create a highly prescriptive regime for dealing with allegedly infringing material in relation to categories B-D. For example, regs 20D-20U provide a regime for dealing with allegations of infringement, notification of those allegations and takedown of infringing materials. In relation to category C activities, reg 20I allows a copyright owner or agent thereof only to provide a notification of claimed infringement in a prescribed form to a CSP. Regulation 20J then provides that the CSP must take down the material and inform the person who uploaded the material. Regulation 20K then allows that person to issue a counter-notice to the CSP stating that the material is not infringing. Following receipt of such notice the CSP must, pursuant to reg 20L, send that notice to the copyright owner, and pursuant to reg 20M, restore the material if the copyright owner does not commence an action within 10 days to have the material restrained or, alternatively, following a suit for copyright infringement which is unsuccessful.

11. Importantly, all notifications pursuant to the regulations are contingent on reg 20X. Such regulation states:

    (1)A person who issues a notification, notice or counter-notice under this Part, for the purpose of satisfying a condition in Subdivision D of Division 2AA of Part V of the Act, must not knowingly make a material misrepresentation in that notification, notice or counter-notice.

    (2)For subregulation (1), a person knowingly makes a material misrepresentation in a notification, notice or counter-notice if the person does not take reasonable steps to ensure the accuracy of the information and statements included in the notification, notice or counter-notice.

    (3)A person who suffers loss or damage because of a material misrepresentation made knowingly in a notification, notice or counter-notice may bring an action for a civil remedy against the person who issued the notification, notice or counter-notice.

    Further, s 137.2 of the Criminal Code1995 (Cth) makes it an offence to issue a notification knowing that it is false or misleading in a material particular.

12. The scheme of the Act in respect of other than category A circumstances provides important safeguards in that any copyright owner or agent thereof who makes an allegation of infringement is liable and accountable for that allegation should it be found to knowingly be false, or if reasonable steps are not taken to ensure the accuracy of the allegation. It ensures that CSPs can act upon the assumption that what is presented to them is true, and that they do not need to second guess or speculate upon the validity of the content of the allegation. It protects those against whom false allegations are made by allowing them to bring suit for that false allegation. It provides certainty for copyright owners by providing a standard which they must meet in order to make the allegation.

13. Second, the nature of categories B-D are such that the allegedly infringing material is stored on the CSP’s servers. Therefore, the CSP can usually directly access the material and make an assessment themselves whether the material is infringing. Indeed, regs 20N-20R allow CSPs to take down material they believe to be infringing absent notification by a copyright owner. Category A activities, by their very nature, are transient. Consequently, the CSP cannot independently verify the correctness of the claimed infringement. Of course it was possible to consult the DVD attached to the AFACT Notices, but such evidence was gathered directly by the person making the allegation of infringement and thus would not independently verify the allegations.

14. Arising from this statutory scheme, the Court considers that, at least in relation to category A activities, a repeat infringer policy should necessarily require a high standard of proof before a decision is made by the CSP that one of its users is a repeat infringer with the consequence that their account is terminated. In relation to categories B-D, the notification/counter-notification scheme together with the ability to access the alleged infringing material itself provides the CSPs with a degree of certainty that prescribed conduct is occurring or has occurred absent an independent third party, such as a court, dealing with the matter. In those circumstances a CSP would be able to conclude more readily that a person is repeatedly infringing in relation to those activities and to proceed confidently to terminate their account without the need for any adjudication of a Court.

15. However, a CSP, in relation to category A activities, has a right to be more cautious before accepting the allegations of the copyright owner or an agent thereof. As Lasnik J in Corbis found, notices alleging copyright infringement are not the ‘sine qua non of copyright liability’ and that ‘notices alone do not make the user’s activity blatant, or even conclusively determine that the user is an infringer’. The regulations allow certain assumptions to be made about prescribed notices for categories B-D inclusive, but there is no such scheme for the notices regarding category A activities.

16. The AFACT notifications are not statutory declarations, nor do they have any statutory basis. At no point did Mr Gane swear to the truth of the allegations contained in such Notices. At no point does he state that he personally had taken reasonable steps to ensure that the information and statements in the notice were true and accurate. All these things are required by the prescribed form of notices in the Regulations in categories B-D. The AFACT Notice of 23 July 2008 states:

    AFACT is associated with the Motion Picture Association (MPA), whose members include Buena Vista International, Inc, Paramount Pictures Corporation, Sony Pictures Releasing International Corporation, Twentieth Century Fox International Corporation, Universal International Films Inc, and Warner Bros. Pictures International [A Division of Warner Bros. Pictures Inc] and their affiliates. AFACT represents Australian producers and/or distributors of cinematographic films and television shows, including affiliates of the member companies of the MPA. AFACT’s members and their affiliates are either the owners or exclusive licensees of copyright in Australia in the majority of commercially released motion pictures including movies and television shows. AFACT undertakes investigations of infringements of copyright in these movies and television shows. [emphasis added]

    As the emphasised sections demonstrate, it is not necessarily clear whether AFACT or Mr Gane is acting as an agent on behalf of the copyright owners or exclusive licensees in making the allegations of infringement (the evidence of Mr Gane and the studio witnesses was that AFACT was not an agent of the applicants). On the face of the letter it is unclear what precise legal relationship AFACT actually has with the copyright owners or exclusive licensees who would necessarily be the ones bringing suit for copyright infringement. Indeed, Roadshow Films and Village Roadshow, the first and twelfth applicants to these proceedings, are not even mentioned in the letter. The letter is concluded with ‘[t]his letter is without prejudice to the rights and remedies of the AFACT member companies and their affiliates, which rights are expressly reserved’, further casting doubt in the CSP’s mind of the extent to which AFACT can speak for the copyright owners and exclusive licensees. The tone of the letter is not so much that AFACT is an agent of copyright owners, but rather seeks to imply that AFACT is some form of quasi-statutory body whose requests required compliance.

17. It would be perverse for the requirements and obligations imposed upon a copyright owner in making an allegation of copyright infringement to be lower in relation to category A than categories B-D, when, unlike categories B-D, the allegation cannot be independently verified by the CSP. It would not seem to accord with Parliament’s intention that safeguards exist, as evidenced by the preceding discussion in regards to the Regulations. The consequence would be termination of a subscriber account which is a severe consequence. Such considerations must be relevant for an assessment of what are ‘appropriate circumstances’ to justify the termination of a subscriber account, and what constitutes implementation of a repeat infringer policy. Consequently, the Court finds that the respondent’s repeat infringer policy, at least in relation to category A activities, was reasonably implemented.

18. In summary, the Court finds that it would not be appropriate to construe the safe harbour provisions such that there is an expectation on the CSP to terminate its subscribers at the request of a person who does not swear to the truth of his statement, and is an employee of an organisation whose precise legal status vis-à-vis the relevant copyright owners and exclusive licensees is not at all clear. Allegations of copyright infringement are serious charges which are potentially defamatory. Further, AFACT enjoys no status as an authority invested with power to issue legally enforceable directions. Merely because there is no statutory scheme regarding category A does not lead to the consequence that the considerations underlying the notification/counter-notification scheme in categories B-D are not relevant to the Court’s determination of what is a reasonable implementation of a repeat infringer policy.

19. Finally on this issue, the Court rejects the submissions of the applicants that Ellison 357 F3d 1072 and Aimster 252 FSupp2d 634 require the Court to find that the respondent did not reasonably implement a repeat infringer policy. Those authorities concerned service providers taking positive steps to prevent any repeat infringer policy being implemented. In the first case it was a decision to change an email address without suitable notification or a mechanism to have the emails on-forwarded; in the second it was encryption of the system such that it was impossible to connect user and transmission. In these proceedings, it is not the respondent’s positive steps that the applicants complain of, but a lack of positive steps. The Court finds that the cases referred to are inapposite.

    Other issues

20. The respondent has submitted that as condition 1 of item 1 is phrased as ‘…accounts of repeat infringers’ the only appropriate circumstance to terminate an account would be where the repeat infringer was the account holder himself or herself. As has been explained in this judgment, this may not be the case. However, the Court rejects the respondent’s submission. The wording in the safe harbour EM at 161 is broader, stating ‘the accounts of users who are repeat copyright infringers’. Further, there is no suggestion in the US authorities that the infringer has to be the account holder themselves. Such a construction would make it difficult for a CSP to take advantage of the safe harbour, because in order to terminate only account holders who infringe, following an allegation of infringement the CSP would have to establish the identity of the actual infringer.

    Conclusion

21. For all the reasons outlined above, should the Court be found to have erred in its finding regarding authorisation, the Court would find that the respondent has adopted and reasonably implemented a repeat infringer policy, and has consequently satisfied the requirements of the Division 2AA of Part V of the Copyright Act. Therefore, the orders the Court could make would be limited to those found in s 116AG(3) of the Copyright Act. However, as the Court has found that the respondent has not authorised infringement, and liability does not arise, there is no occasion to consider any appropriate remedies.

    PART G: CONCLUSION

22. The Court makes the following findings:

    (1)The Court finds that primary infringement has been made out. The applicants have proven that the iiNet users ‘made available online’, ‘electronically transmitted’ and made copies of the identified films.

    (2)The Court finds that the applicants have not proven that the respondent authorised the infringement of the iiNet users. In making such finding the Court finds that Telco Act defence does not arise, and the Court finds that s 112E is not applicable in the present circumstances. Consequently, the Amended Application fails.

    (3)The Court finds that the respondent satisfied the requirements of the safe harbour provisions, though, because of the finding in (2), it does not need their protection.

23. Therefore the Amended Application of the applicants fails. The Court will make an order that the applicants pay the respondent’s costs in the matter, as well as the costs thrown away by the respondent due to the applicants abandoning of the primary infringement claim against the respondent. Should any party wish to make further submissions on the issue of costs they have leave to notify the Court within 14 days.

I certify that the preceding six hundred and thirty-six (636) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        4 February 2010

SCHEDULE I – THE APPLICANTS

UNIVERSAL CITY STUDIOS LLLP

Second Applicant

PARAMOUNT PICTURES CORPORATION
Third Applicant

WARNER BROS. ENTERTAINMENT INC.
Fourth Applicant

DISNEY ENTERPRISES, INC.
Fifth Applicant

COLUMBIA PICTURES INDUSTRIES, INC
Sixth Applicant

TWENTIETH CENTURY FOX FILM CORPORATION
Seventh Applicant

PARAMOUNT HOME ENTERTAINMENT (AUSTRALASIA) PTY LTD
Eighth Applicant

BUENA VISTA HOME ENTERTAINMENT, INC.
Ninth Applicant

TWENTIETH CENTURY FOX FILM CORPORATION (AUSTRALIA) PTY LIMITED
Tenth Applicant

UNIVERSAL PICTURES (AUSTRALIA) PTY LTD
Eleventh Applicant

VILLAGE ROADSHOW FILMS (BVI) LTD
Twelfth Applicant

UNIVERSAL PICTURES INTERNATIONAL B.V
Thirteenth Applicant

UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP
Fourteenth Applicant

RINGERIKE GMBH & CO KG
Fifteenth Applicant

INTERNATIONALE FILMPRODUKTION BLACKBIRD VIERTE GMBH & CO KG
Sixteenth Applicant

MDBF ZWEITE FILMGESELLSCHAFT MBH & CO KG
Seventeenth Applicant

INTERNATIONALE FILMPRODUCKTION RICHTER GMBH & CO KG
Eighteenth Applicant

NBC STUDIOS, INC
Nineteenth Applicant

DREAMWORKS FILMS L.L.C
Twentieth Applicant

WARNER BROS INTERNATIONAL TELEVISION DISTRIBUTION INC
Twenty-First Applicant

TWENTIETH CENTURY FOX HOME ENTERTAINMENT INTERNATIONAL CORPORATION
Twenty-Second Applicant

WARNER HOME VIDEO PTY LTD
Twenty-Third Applicant

PATALEX III PRODUCTIONS LIMITED
Twenty-Fourth Applicant

LONELY FILM PRODUCTIONS GMBH & CO KG
Twenty-Fifth Applicant

SONY PICTURES ANIMATION INC
Twenty-Sixth Applicant

UNIVERSAL STUDIOS INTERNATIONAL B.V.
Twenty-Seventh Applicant

SONY PICTURES HOME ENTERTAINMENT PTY LTD
Twenty-Eighth Applicant

GH ONE LLC
Twenty-Ninth Applicant

GH THREE LLC
Thirtieth Applicant

BEVERLY BLVD LLC
Thirty-First Applicant

WARNER BROS ENTERTAINMENT AUSTRALIA PTY LTD
Thirty-Second Applicant

TWENTIETH CENTURY FOX HOME ENTERTAINMENT LLC
Thirty-Third Applicant

SEVEN NETWORK (OPERATIONS) LTD

Thirty-Fourth Applicant

SCHEDULE II – THE IDENTIFIED FILMS

No.	Title	Owner(s)	Exclusive licensee(s)
Roadshow Films
R1	I Am Legend	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
R2	Speed Racer	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
R3	Happy Feet	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
R4	The Invasion	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
R5	Ocean's 13	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
R6	The Reaping	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
R7	No Reservations	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
R8	The Brave One	Village Roadshow Films (BVI) Limited	Roadshow Films Pty Ltd
Universal Films
U1	Forgetting Sarah Marshall	Universal City Studios Productions LLLP	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U2	American Gangster	Universal City Studios Productions LLLP	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U3	The Mummy: Tomb of the Dragon Emperor	Universal City Studios Productions LLLP Ringerike GmbH & Co KG	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U4	Wanted	Universal City Studios Productions LLLP Internationale Filmproduktion Blackbird Vierte GmbH & Co KG	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U5	Atonement	Universal City Studios Productions LLLP	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U6	The Kingdom	Universal City Studios Productions LLLP MDBF Zweite Filmgesellschaft mbH & Co KG	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U7	Baby Mama	Universal City Studios Productions LLLP	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U8	Mamma Mia!	Universal City Studios Productions LLLP Internationale Filmproduktion Richter GmbH & Co KG	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
U9	Heroes, Season 3, Episode 3, “One of Us, One of Them”	NBC Studios Inc	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd Seven Network (Operations) Limited
U10	Heroes, Season 3, Episode 4, “I Am Become Death”	NBC Studios Inc	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd Seven Network (Operations) Limited
U11	Heroes, Season 3, Episode 5, “Angels and Monsters”	NBC Studios Inc	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd Seven Network (Operations) Limited
U12	Life, Season 2, Episode 3, “The Business of Miracles”	NBC Studios Inc	Universal Studios International BV Universal Pictures (Australasia) Pty Ltd
Paramount Films
P1	The Spiderwick Chronicles	Paramount Pictures Corporation	Paramount Home Entertainment (Australasia) Pty Ltd
P2	Cloverfield	Paramount Pictures Corporation	Paramount Home Entertainment (Australasia) Pty Ltd
P3	Stop-Loss	Paramount Pictures Corporation	Paramount Home Entertainment (Australasia) Pty Ltd
P4	Shooter	Paramount Pictures Corporation	Paramount Home Entertainment (Australasia) Pty Ltd
P5	Transformers	Paramount Pictures Corporation DreamWorks Films L.L.C.	Paramount Home Entertainment (Australasia) Pty Ltd
P6	Hot Rod	Paramount Pictures Corporation	Paramount Home Entertainment (Australasia) Pty Ltd
P7	Stardust	Paramount Pictures Corporation	Paramount Home Entertainment (Australasia) Pty Ltd
P8	The Heartbreak Kid	DreamWorks Films L.L.C.	Paramount Home Entertainment (Australasia) Pty Ltd
P9	Things We Lost in the Fire	DreamWorks Films L.L.C.	Paramount Home Entertainment (Australasia) Pty Ltd
Warner Bros Films
WB1	Batman Begins	Warner Bros Entertainment Australia Pty Ltd
WB2	Gossip Girl, Season 2, Episode 2, “Never Been Marcused”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB3	Supernatural, Season 3, Episode 15, “Time Is On My Side”	Warner Bros Home Entertainment Inc Warner Bros Entertainment Australia Pty Ltd
WB4	300	Warner Bros Entertainment Australia Pty Ltd Warner Bros International Television Distribution Inc
WB5	Blood Diamond	Warner Bros Entertainment Australia Pty Ltd Warner Bros International Television Distribution Inc
WB6	One Tree Hill, Season 6, Episode 2, “One Million Billionth of a Millisecond on a Sunday Morning”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB7	Harry Potter and the Order of the Phoenix	Warner Bros Entertainment Australia Pty Ltd Warner Bros International Television Distribution Inc
WB8	The Closer, Season 4, Episode 6, “Problem Child”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB9	Smallville, Season 7, Episode 17, “Sleeper”	Warner Bros Home Entertainment Inc Warner Bros Entertainment Australia Pty Ltd
WB10	Two and a Half Men, Season 5, Episode 19, “Waiting for the Right Snapper”	Warner Bros Home Entertainment Inc Warner Bros Entertainment Australia Pty Ltd
WB11	Gossip Girl, Season 2, Episode 1, “Summer, Kind of Wonderful”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB12	Supernatural, Season 4, Episode 1, “Lazarus Rising”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB13	Supernatural, Season 4, Episode 2, “Are you There God? It’s Me, Dean Winchester”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB14	Supernatural, Season 4, Episode 3, “In the Beginning”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB15	One Tree Hill, Season 6, Episode 1, “Touch Me, I’m Going to Scream”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB16	One Tree Hill, Season 6, Episode 3, “Get Cape. Wear Cape. Fly”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB17	Smallville, Season 8, Episode 1, “Odyssey”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB18	Smallville, Season 8, Episode 2, “Plastique”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB19	Smallville, Season 8, Episode 3, “Toxic”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB20	Smallville, Season 8, Episode 4, “Instinct”	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
WB21	Two and a Half Men, Season 5, Episode 16, “Look At Me, Mommy, I’m Pretty”	Warner Bros Home Entertainment Inc Warner Bros Entertainment Australia Pty Ltd
WB22	Two and a Half Men, Season 5, Episode 17, “Fish in a Drawer”	Warner Bros Home Entertainment Inc Warner Bros Entertainment Australia Pty Ltd
WB23	The Dark Knight	Warner Bros Home Entertainment Inc Warner Bros International Television Distribution Inc
Disney Films
D1	Enchanted	Disney Enterprises, Inc	Buena Vista Home Entertainment, Inc
D2	Pirates of The Caribbean: At World’s End	Disney Enterprises, Inc	Buena Vista Home Entertainment, Inc
D3	College Road Trip	Disney Enterprises, Inc	Buena Vista Home Entertainment, Inc
Columbia Films
C1	Hancock	Columbia Pictures Industries, Inc GH Three LLC	Sony Pictures Home Entertainment Pty Ltd
C2	21	Columbia Pictures Industries, Inc GH Three LLC	Sony Pictures Home Entertainment Pty Ltd
C3	Spider-Man 3	Columbia Pictures Industries, Inc	Sony Pictures Home Entertainment Pty Ltd
C4	Made of Honor (also known as Made of Honour)	Columbia Pictures Industries, Inc Beverly Blvd LLC	Sony Pictures Home Entertainment Pty Ltd
C5	Talladega Nights: The Ballad of Ricky Bobby	Columbia Pictures Industries, Inc GH One LLC	Sony Pictures Home Entertainment Pty Ltd
C6	Vantage Point	Columbia Pictures Industries, Inc GH Three LLC	Sony Pictures Home Entertainment Pty Ltd
C7	Surf’s Up	Sony Animation Inc	Sony Pictures Home Entertainment Pty Ltd
C8	Superbad	Columbia Pictures Industries, Inc	Sony Pictures Home Entertainment Pty Ltd
C9	The Pursuit of Happyness	Columbia Pictures Industries, Inc GH One LLC	Sony Pictures Home Entertainment Pty Ltd
C10	Pineapple Express	Columbia Pictures Industries, Inc Beverly Blvd LLC	Sony Pictures Home Entertainment Pty Ltd
Fox Films
F1	Dr Seuss’ Horton Hears A Who!	Twentieth Century Fox Home Entertainment LLC	Twentieth Century Fox Home Entertainment International Corporation
F2	Night At The Museum	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation
F3	The Simpsons, Season 19, Episode 17, “Apocalypse Cow”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation
F4	The Simpsons, Season 19, Episode 18, “Any Given Sundance”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation
F5	The Simpsons, Season 19, Episode 19, “Mona Leaves-A”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation
F6	The Simpsons, Season 19, Episode 20, “All About Lisa”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation
F7	Family Guy, Season 7, Episode 1, “Love Blactually”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F8	Family Guy, Season 7, Episode 2, “I Dream of Jesus”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F9	Family Guy, Season 7, Episode 3, “Road to Germany”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F10	Prison Break, Season 4, Episode 1, “Scylla”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F11	Prison Break, Season 4, Episode 3, “Shut Down”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F12	Prison Break, Season 4, Episode 4, “Eagles and Angels”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corp Seven Network (Operations) Limited
F13	Bones, Season 4, Episodes 1-2, “Yanks in the UK Part 1” and “Yanks in the UK Part 2”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F14	Bones, Season 4, Episode 3, “The Man in the Outhouse”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F15	Bones, Season 4, Episode 4, “The Finger in the Nest”	Twentieth Century Fox Film Corporation Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F16	Bones, Season 4, Episode 6, “The Crank in the Shaft”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F17	Bones, Season 4, Episode 7, “The He in the She”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F18	Family Guy, Season 6, Episode 11, “The Former Life of Brian”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F19	How I Met Your Mother, Season 4, Episode 3, “I Heart NJ”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F20	American Dad, Season 4, Episode 2, “The One That Got Away”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited
F21	American Dad, Season 4, Episode 3, “One Little Word”	Twentieth Century Fox Home Entertainment LLC Twentieth Century Fox Film Corporation (Australia) Pty Ltd	Twentieth Century Fox Home Entertainment International Corporation Seven Network (Operations) Limited