iiNet vs AFACT: Internet Industry Association denied entry

iiNet vs AFACT: Internet Industry Association denied entry

On the final day of proceedings, IIA's application to join in on the case has been rejected

The Internet Industry Association (IIA) has been refused participation in the legal dogfight between the Australian Federation Against Copyright Theft (AFACT) and iiNet by the Federal Court.

The industry body represents the wider Internet community, including ISPs, and has more than 140 members.

On the final day of the copyright trial, presiding judge, Justice Cowdroy, passed judgment rejecting IIA’s application to contribute to the case as amicus curiae, a ‘friend of the court’. The application, first flagged in September, was opposed by AFACT as it claimed IIA was incapable of taking a neutral position in the case as iiNet is a member of the organisation.

AFACT also accused the the IIA of liasing with the defendant to provide advice on the case. AFACT had previously tendered email documents showing the two parties had communicated over copyright infringement.

Justice Cowdroy concluded the industry body would have little to add to the trial. In a judgment document, he said that most concerns regarding the Copyright Act and Telecommunications Act 1997 has been covered extensively by iiNet.

“Indeed the industry detail and comprehensiveness of iiNet’s closing submissions, stretching more than 260 eclipses the brief submission of the IIA and even on the specific matters with which the IIA wishes to address the Court,” the document said. “The Court acknowledges that the fact that the IIA could not be considered impartial is irrelevant.

“Equally, it is irrelevant that the IIA happens to have a perspective which is aligned with one of the parties and not the other.”

AFACT barrister, Tony Bannon SC, also delivered his rebuttal to iiNet’s closing. He restated his previous credibility attacks on iiNet and readdressed the claim the ISP is culpable for the piracy by its users.

“The user with an unauthorised copy of a film, if he is not online then he is not infringing and iiNet… has power to prevent access to its facilities and hence iiNet has the ability to address infringement,” Bannon said. “[To assert iiNet] has no power to prevent [infringements on its network] is ambitious and it is wrong.”

He rejected iiNet’s claim it had no control over the BitTorrent software, the primary tool used for the said copyright infringements, and was therefore unable to act.

“This ignores the central element to infringement, which is making [content] available online, in this case, by iiNet’s facilities,” Bannon said. “If [a user] is not online… there is nothing the BitTorrent software can do to cause [him or her] to be infringing online.”

AFACT is representing a host of Hollywood film studios suing iiNet for ‘authorising’ copyright contravention by its users by turning a blind eye to their illegal downloads on BitTorrent.

The proceedings are scheduled to conclude today. A verdict is not expected for several months. For a detailed timeline of the case, click here.

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Tags iiNetAustralian Federation Against Copyright Theft (AFACT)Internet Industry Association (IIA)


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