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UPDATED: iiNet 2 AFACT 0 - copyright case appeal dismissed

UPDATED: iiNet 2 AFACT 0 - copyright case appeal dismissed

Malone celebrates, Court warns it isn't over yet

The Australian Federation Against Copyright Theft (AFACT) has lost its appeal in the copyright case against Perth-based ISP, iiNet. But it hasn't conceded all is lost.

Representing a host of high-profile movie studios, AFACT, took iiNet to court over copyright infringement. In a case that has spanned more than two years, the anti-piracy group argued iiNet had knowingly allowed its subscribers to continue illegal movie downloads and was therefore culpable for the copyright infringements.

Click here for the iiNet v AFACT court case timeline

In February 2010, the Federal Court ruled iiNet was not at fault and ordered AFACT to pay the ISP’s legal bills.

Presiding judge, Justice Dennis Cowdroy, said it was “impossible to conclude iiNet has authorised copyright infringements”.

AFACT swiftly launched an appeal. The hearing in the Full Court occurred in April in front of Justices Emmett, Jagot and Nicholas.

Today, Justice Emmett announced that the Full Court had dismissed AFACT's appeal.

It was revealed that Justices Emmett and Nicholas were in favour of dismissing the appeal. However, Justice Jagot thought the appeal should be allowed to go through.

Justice Emmett noted AFACT was “successful in a number of respects” in respect to its appeal against paying iiNet’s full legal bill. He said the parties should be heard further in terms of the cost of the appeal.

iiNet chief, Michael Malone, was pleased with the judgement for a case which he claimed has cost the company $6.5 million in legal fees.

“All this legal action hasn’t stopped one customer from downloading [illegal files] anywhere in Australia,” he said outside of the Federal Court, Sydney. “We want to invite rights holders back to make content available legally and legitimately so customers can get access to it.”

Malone was opened to the idea of the Federal Government intervening on this copyright issue.

“Copyright laws need changing… There needs to be a lot more clarity on what is expected of carriage service providers,” he said. “Ultimately this will only be resolved with the Government stepping in to provide clarity in these situations.”

AFACT chief, Neil Gane, said the group will go through the judgement and decide what the next course of action should be. He did not confirm whether another appeal is on the cards.

“This is a case where an ISP admitted knowing about copyright infringements but doesn’t have to lift a finger to prevent them,” he said. “Copyright infringement now goes on unabated.”

"It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements."

While AFACT has lost the appeal, iiNet has been warned it is not out of the woods just yet.

"It is clear that the questions raised in the proceeding are ongoing," according to the full judgement. "It does not necessarily follow from the failure of the present proceeding that circumstances could not exist whereby iiNet might in the future be held to have authorised primary acts of infringement on the part of users of the services provided to its customers under its customer service agreements."

The legal stoush between iiNet and AFACT has garnered global attention since it could set a precedent for court action to be taken on ISPs over the actions of their subscriber-base.

The court case has divided opinions. Some claim ISPs are merely supplying a utility-like service and should not be held accountable for the what subscribers do on their networks while others argue service providers should take responsibility for the actions of its customers.

Some have blamed the film studios for proliferating piracy by failing to provide adequate online content distribution models. AFACT has hit back at such claims.

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Tags Australian Federation Against Copyright Theft (AFACT)M2 Telecommunications Groupillegal downloadingiiNetmovie piracypiracy

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