iiNet copyright battle set for High Court

The Australian Federation Against Copyright Theft will continue its legal battle against ISP iiNet over copyright infringement, seeking leave to appeal its case to the High Court.

The announcement comes one month after the Federal Court dismissed an appeal from AFACT, following a decision last year that said iiNet was not liable for the copyright infringements of its customers.

In November 2008, 34 parties – including Australian and US film companies and the Seven Network – lodged a legal case against iiNet in relation to copyright infringement and internet content piracy.

In October 2009, the hearing of the case commenced in the Federal Court, and it appeared to be concluded in February when two judges dismissed an appeal by AFACT – which represented the film companies – and stated iiNet had not authorised the infringement of copyright laws.

The two-year-long case resulted in two losses for AFACT and has cost iiNet $6.5 million in legal expenses. However, AFACT has announced it is ready to appeal to the High Court.

“The Full Federal Court unanimously found that iiNet had the power to prevent the infringements of its users from occurring and that there were reasonable steps it could have taken, including issuing warnings,” AFACT executive director Neil Gane said.

Gane added AFACT will be appealing the part of the decision that stated iiNet did not authorise the infringements of its users.

Charles Alexander, Minter Ellison partner and copyright law expert, says it is right that such an influential case should be heard in the High Court, “particularly where we have a matter where there are effectively four different decisions”.

While the Federal Court found last month that iiNet was not liable for the users’ copyright infringements, it nevertheless said the company displayed an arrogant tone when dealing with infringement notices.

“While the evidence supports a conclusion that iiNet demonstrated a dismissive and indeed contumelious attitude to the complaints of infringement by the use of its services, its conduct did not amount to authorisation of the primary acts of infringement on the part of iiNet users,” Justice Emmett said in the ruling.

Justice Jagot also wrote the tone of iiNet’s internal discussion was “difficult to reconcile with its stated position to AFACT that it was ‘very concerned’ about AFACT’s allegation”.

The diverse range of views within the ruling has prompted the industry to further debate the issue of self-regulation.

The Australian Information Industry Association has announced it will bring forward discussions of a non-binding code for ISPs, while iiNet has released its own discussion paper proposing a type of system for stopping infringers.

But AFACT says it wants to argue to the High Court that iiNet did have sufficient knowledge of copyright infringements.

“We are confident of our grounds for appeal and hopeful that special leave to the High Court will be granted,” Gane said.