AFACT to seek High Court ruling in iiNet copyright battle

The ongoing copyright case between the entertainment industry and Australian ISP iiNet is set to continue, with the Australian Federation Against Copyright Theft announcing it will seek leave to appeal 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.

But AFACT said in a statement it will seek leave to appeal to the High Court after two judges of the Federal Court said there were some elements of the case that were in AFACT’s favour.

“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.

“I think everyone would welcome the High Court appeal,” he said. “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 allegations”.

The diverse range of views within the ruling led the industry to start talking about self-regulation. The Australian Information Industry Association announced it would bring forward discussions of a non-binding code for ISPs, while iiNet itself released a 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.

iiNet responded, with managing director Michael Malone once again saying that a High Court decision won’t stop copyright infringers from stealing entertainment unless it is offered in a freely accessible manner online.

“It’s time for the film industry and copyright holders to work with the industry to make their content legitimately available,” he said.

Malone added he has received good feedback from the discussion paper it released, saying iiNet wants to see the development of an independent body dedicated to identifying copyright infringements.

“We believe that an independent umpire is the only way we can ensure natural justice and protect customer privacy, while allowing copyright owners their rights to pursue alleged infringers,” Malone concluded,” he said.