The Australian Federation Against Copyright Theft (AFACT) is seeking to pay only 60 per cent of iiNet’s court costs, claiming the verdict handed down by the Federal Court in February was a “mixed result”.
The anti-piracy group launched and lost a Federal Court case against the Perth-based ISP for alleged copyright infringement. AFACT accused iiNet of authorising film piracy by its subscribers by refusing to take action against them. In its verdict in February, the court ordered AFACT to foot iiNet’s legal bill. AFACT then launched an appeal.
AFACT bases its justification for not paying the court bill in full on the verdict by presiding judge, Justice Cowdroy, which was broken down into several sections. While he dismissed the case brought forth by AFACT, Justice Cowdroy did not acknowledge certain parts of iiNet’s defence. This included the validity of Safe Harbour and the ISP’s assertion it was protected as a carriage service provider under Section 112E of the Copyright Act.
Justice Cowdroy declared iiNet was not qualified for 112E protection.
In its presentation today, AFACT highlighted several preceding court cases where the losing party did not have to pay the full court costs of the victor with compensation determined. In those cases, the court allocated compensation based on issues addressed during proceedings only. The anti-piracy group appealed for the same kind of treatment.
“In the case of a mixed result, when neither party is wholly successful, cost cannot be done by mathematical precision,” AFACT’s legal representation, J. M. Hennessy, said. Paying 60 per cent was fair when considering the outcomes of previous cases of similar nature, he said.
“The victory is overstated because you honour’s ultimate finding disposing of the issues, didn’t necessarily adopt either side’s argument,” Hennessey said.
iiNet maintains it is entitled to the full indemnity and claimed it was impractical to weigh up every single detail of a case to determine reimbursement for legal bills.
“One doesn’t engage in an unscrambling of an egg unless there are very good reasons for doing so,” iiNet barrister, John Cobden, said.
He claimed previous court cases where special treatment was given, as highlighted by AFACT, were significantly different to the case at hand.
The appeal is still in progress.