Copyright Conundrum Liability of ISPs for Online Copyright Infringement

As digital rights holders become increasingly proactive in asserting their rights against infringers, Internet service providers (“ISPs”) are more frequently becoming embroiled in online copyright infringement disputes. ISPs have, in turn, become increasingly concerned about their potential exposure to liability for acts of copyright infringement committed by their subscribers using the ISPs' facilities and services, and about balancing their privacy obligations to subscribers with compliance with requests for disclosure of subscriber details by digital rights holders who allege that those subscribers have committed acts of copyright infringement. This paper examines the potential liability of ISPs under Australian law for acts of online copyright infringement by their subscribers, both before and after the implementation of the U.S.-Australia Free Trade Agreement. It also considers the obligations of ISPs to disclose subscriber details to digital rights holders who allege that those subscribers have infringed their digital rights. Finally, this paper briefly discusses ways in which ISPs can minimise their liability through their contractual relationship with subscribers.