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.