iiNet’s legal representative has taken the stage to strengthen the company’s ‘win’ verdict against the Australian Federation Against Copyright Theft (AFACT).
iiNet barrister, Richard Cobden, addressed the Full Federal Court on the second day of the landmark copyright case’s appeal hearing.
The Federal Court ruled in favour of the ISP in February after finding the company did not authorise the copyright infringement by its users through illegally downloading content through peer-to-peer client, Bit Torrent.
Presiding judge for the original case, Justice Cowdroy, used a guideline established by previous copyright case to determine whether iiNet had authorised the alleged infringements.
There are four steps in the guideline to identify authorisation: Providing the means of infringement, making copyright material available, knowledge of infringement and whether reasonable steps were taken to prevent copyright, that is, the power to prevent.
AFACT had focused on knowledge and power to prevent, claiming iiNet knew its customers were pirating content and it had the necessary contractual and technical power to restrict or disconnect accounts offending accounts.
But Justice Cowdroy concluded iiNet did not provide the means of piracy, Bit Torrent, and so the rest of the guideline is therefore irrelevant. AFACT has argued this judgement is wrong as well as unorthodox and the individual steps in the guideline do not have to be read in order.
Cobden attempted to strengthen Justice Cowdroy’s judgement, reiterating the authorisation guideline should be considered in the established order. All three judges in the Full Court questioned Cobden on this extensively.
He also rebutted AFACT’s accusations that iiNet did not take reasonable steps to stop film pirate users.
AFACT had stressed there were a number of gradual steps short of termination of accounts the ISP could have taken to prevent users pirating content.
Cobden argued all the steps AFACT suggested, including forwarding warning notifications and restricting download speeds, ultimately leads to termination.
“If all [iiNet] did was had a policy of warning with no point of taking action afterwards... [AFACT] would say that is a phantom exercise of power so what [AFACT] is saying is we must have a policy with an endpoint of termination,” he said. “... That is not a reasonable step.”
AFACT had maintained iiNet “countenanced”, or tolerated, copyright infringement by its users which was tantamount to authorisation.
Cobden again reaffirmed Justice
Cowdroy’s ruling the “sanctioned, approved, countenanced” are taken to mean direct approval.
Synonyms of countenanced cannot be considered to mean authorisation, he said.
AFACT represents a group of high profile movie studios in this case.
The hearing continues.
7 Comments
John Pasquale
1
I would like to know how much money was spent coming up with the AFACT acronym. Maybe it was just a bunch of monkeys with typewriters.
Rhys
2
The greedy AFACT movie moguls who are busy feeding at the swill trough can go crawl down a hole and die.
Simon Aiken
3
Instead of wasting time and money on court cases, I suggest the following for the entertainment industry:
a. People want INSTANT ACCESS to the latest content AND EASY ACCESS to the old stuff, no mater how obscure. INVEST AND DEVELOP mainframe hubs to provide the latest TV, MUSIC, and MOVIES to the global audience at the same time to everyone - without product placements instead of traditional advertising - AND at a lower price allow the downloading of all previously recorded material.
b. INVEST AND DEVELOP cloud computing devices that stream the content wirelessly and reliably. If people figure out how to make saved copies you need to come to arrangements with hardware manufacturers that the copies will be substandard compared to the original.
c. Run a combination SUBSCRIPTION and PREMIUM CONTENT payment system that is easily administered through the device (TV / Computer / whatever).
d. Accept that growth of earnings from now on is going to stay steady even though the audience numbers increases dramatically. The selling vinyl records to teenagers days are over.
Samuel
4
The studios are afraid of loosing their old business models. They could easily embrace bittorrent and turn it into a profitable, mainstream media distribution network, and pay almost nothing for content delivery. If they sold directly, instead of going through the likes of apple's iTunes or amazon, they could make even more money than they currently do. People don't want DRM restricted media, we want to watch it on our TVs regardless of if we walk into JB and buy a plastic disc or click on a few links on the internet. The first 'big' studio that figures that out will make a heck of a lot of money.
Fair go
5
The hate against AFACT is excessive.
How about we all just stop being freeloaders and BUY the bloody movies?
zag
6
The problem isn't buying their products.
It's the fact they don't have any product to buy in the first place online.
They want people not to download anything and buy it out of a shop and with the newest generation that has pretty much come to a stop.
So what do they do when all the older generation don't buy anything they have to shut down record stores etc.
HMV's used to be every where now they don't exist because people weren't buying enough CDs.
Some Sanity's are around but they are pretty much the last lot left, probably owned by Coles so have the other shops to support them if they don't earn enough.
other wise for the harder to find stuff you now having to go online regardless even to buy the CD version.
So what do the studios do they sue the customers and then the ISPs and get laws altered so your forced into buy stuff out of a shop that in many places in Australia just doesn't exist anymore.
They are their own worse enemy, yet haven't figured they will be forced into selling stuff online.
Currently I don't think they are too worried about the end buyers and what they are doing.
it's the bands that probably worry them as you can go and buy some studio time then make your own CD if you want it's only $100 for 500+ these days or put it online never make a CD and still sell your own music and make 100% profit back.
The big indie bands have already started doing this, if all bands do the above then the music studios strangle hold is broken and they won't have any new product to sell.
I would say that's the main reason why they don't want to sell stuff online as it will open the flood gates.
Look at Sound cloud you can get the latest techno music fresh out of Europe, Teisto is on there and comments on other peoples work they release.
If he releases stuff on there you can buy a copy MP3/CD or listen for free within seconds of him uploading it.
Studios just can't comprehend something like that.
look at Madonna's last CD release she had the gold CD under lock and key in a suitcase with her brother who had to be with it for months, just so it wasn't released online before the official release.
I guess people at her studio didn't have the heart to tell her it was already online a month and half before the official release date and she sues people who pirate her stuff.
Simon Aiken
7
re: #5 Fair Go. There's no hate towards AFACT, only love. Of course people should get fair reimbursement for their time and talent. The problem is that the entertainment industry still wants to sell a "product", calculate sales per units. They don't actually care what an artist has produced - just that they can imprint it onto something physical to sell.
The future, as shown by the increasing popularity of peer to peer technology, is that people crave access; and so the tv, movie and music studios that actually produce CONTENT need to start selling that information directly through downloads and streaming. Re-sellers like conventional TV stations, iTunes, etc will miss out... but so did the guy who used to shoe horses when the car came along.
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