Whilst the relationship between iiNet and its customers involves the provision of technology, iiNet had no direct technical power at its disposal to prevent a customer from using the BitTorrent system to download the appellants’ films on that customer’s computer with the result that the appellants’ films were made available online in breach of s 86(c)
From a contractual perspective:
Even it if were possible to be satisfied that iiNet’s inactivity after receipt of the AFACT notices, and its subsequent media releases, “supported” or “encouraged” its customers to continue to make certain films available online, s 101(1A) (construed with both s 22(6) and s 112E) makes it plain that that would not be enough to make iiNet a secondary infringer.
While the court concludes that ISPs cannot be said to authorize infringement under current law, legislative or industry practices could be used to address the issue. It notes that some approaches may still involve the courts (ie. termination of accounts) and issues of cost sharing. Canada is slated to adopt its own notice-and-notice approach to address these issues as part of Bill C-11.