Federal Court to announce landmark decision on iiNet, AFACT appeal this afternoon

A decision will finally be handed down by the Federal Court this afternoon in the appeal case between telco iiNet and the Australian Federation Against Copyright Theft in a verdict that could have drastic ramifications for the telecommunications and media industries. 

The decision will come nearly a year after the original case was heard, with AFACT arguing that iiNet was liable for copyrighted material its users were downloading. iiNet won the original case.

The appeal was heard over four days in August last year with Justices Emmett, Nicholas and Jagot presiding.

Counsel for both parties presented written submissions and further information was provided in the form of decision trees that summarised the history of the case and possible judgments.

Those decision trees, which were ordered be made by the court, were constructed because the matter was becoming so complex, with over 50 areas of copyright and other law involved.

iiNet said in a statement yesterday part of its case will rely on the decision handed down by Justice Cowdroy last year which states that the company did not engage in the same copyright theft committed by its members.

“The evidence also demonstrated that iiNet clearly and publicly promotes the distribution of licensed content via its Freezone and clearly prohibits users from infringing copyright via its facilities,” the statement said.

Cowdroy said iiNet could not be seen as “sanctioning, approving or countenancing” any theft and added that “the evidence establishes that iiNet has done no more than to provide an internet service to its users”.

AFACT, whose members include major studios including Universal and Roadshow, is appealing that decision, arguing that iiNet members who download copyrighted materials including television shows and films are doing so only because iiNet allows them to.

AFACT counsel David Catterns QC said last year it would be seeking a declaration that iiNet “authorised the primary infringement that they have admitted to”.

It is appealing on 15 separate points which cover the Privacy Act, a defence of the method used to count infringements used in the investigation and the nature of “safe harbour” laws.

Safe harbour laws state that iiNet doesn’t have to act on copyright infringements on its networks unless it actually receives court orders to do so. AFACT wants to appeal that part of the decision.

AFACT also rejects an argument made by iiNet that it discourages illegal downloading because of its Freezone section, which allows customers to download media content that doesn’t count against their bandwidth limits. 

iiNet is also appealing some elements of the decision – specifically about how infringements are defined.

If AFACT wins the case it could cause drastic ramifications for the telco industry, with other ISPs possibly forced to take action against customers who download copyrighted materials.

When AFACT was contacted by SmartCompany this morning it said it would release a statement after the decision has been made. 

SmartCompany will report on the court’s decision this afternoon at 2.15pm.