Was there a safe harbour for iiNet?
The Copyright Act establishes a safe harbour for carriage service providers, which includes ISPs, similar to that in the USA’s Digital Millennium Copyright Act. Because iiNet had not authorised the infringement, Justice Cowdroy did not strictly need to decide how the section affected iiNet. However, he held that, if it had authorised the infringements, iiNet would have been protected. In order to qualify for the safe harbour, an ISP must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers. The Court found that the requirements of the repeat infringer policy itself are minimal, with significant latitude granted to ISPs to determine the policy. Although iiNet did not implement the policy sought by AFACT, notices on its website and the terms of its customer agreements were sufficient to meet the safe harbour requirements. What power did iiNet have anyway? Under section 276 of the Telecommunications Act,
