Having brewed for more than two years, the copyright case between iiNet and the Australian Federation Against Copyright Theft (AFACT) may soon come to a close as both parties head off to the High Court.
AFACT took the Perth-based ISP to the Federal Court on behalf of a swathe of big name movie studios in November 2008. The anti-piracy group accused iiNet of authorising illegal downloading of films through BitTorrent through inaction.
Having been defeated in the Federal Court and again in its Full Court appeal, AFACT is taking its case all the way to Canberra.
The stage has been set for a December 1 and 2 High Court hearing.
The High Court is the final court of appeal and the outcome of this case is likely to result in legislative changes.
Five judges will be overseeing the two-day hearing. With so little time, the High Court will be running a tight ship and arguments from both sides will have to be succinct.
In iiNet’s view, the key points of contention will revolve around the idea of “authorisation” of copyright infringement, quality of evidence to ascertain whether some of the ISP’s customers were indeed pirating films and reasonable steps for the company to deal with piracy within its customer base.
Authorisation was always the focal point throughout the entire legal battle since it is a term that carries different meanings for both parties.
AFACT brought on the case based on the idea iiNet had “countenanced” (essentially turning a blind eye to) illegal downloading by its subscribers which equated to authorisation. This reasoning was extrapolated from parts of the judgment in the Moorhouse case in 1975 involving a University of New South Wales student infringing copyright by photocopying a book by Frank Moorhouse.
The judgement stated the word “authorise” means “sanction; approve; countenance”.
In AFACT’s view, even if permission was never expressly given, iiNet in some sense knew its users were pirating movie and did nothing to stop them. Hence the ISP is liable.
iiNet argues this approach is too simplistic and the anti-piracy group has justified its case with the weakest synonym of ‘authorisation’.
This point is crucial since the outcome of the case may determine the threshold for how ISPs and copyright holders define authorisation.
“If they were able to get home on saying iiNet countenanced and that was enough, that would be the Court setting a lower threshold for authorisation,” Herbert Geer partner, Graham Phillips, said.
His law firm has represented iiNet throughout the entire case.
If mere countenance was recognised as enough to constitute authorisation, the entire ISP industry would have to be much more readily required to take action once it is approached by content owners or once they become aware of illegal downloading by their customer base. This, of course, would be the best outcome for AFACT.
But then there’s the tricky subject of knowledge. Just because an ISP has a general knowledge of copyright infringements occurring on its network, does that mean it should terminate the service of suspected pirates despite not having hard evidence?
In the Full Court appeal, one of the presiding judges, Justice Emmett noted even if iiNet had reason to suspect users were pirating movies, there had to be “unequivocal and cogent” evidence for the ISP to act.
AFACT has argued it had provided iiNet with enough information to confirm specific users of committing piracy off BitTorrent in the form of recorded IP addresses. But the reliability of this information is debateable when you factor in shared computers, use of unsecured WiFi networks and so on. This makes it hard to pinpoint one guilty party to take action against.
The High Court would have to provide some clarity on what would be classified as unequivocal and cogent evidence as well as whether “reason to suspect” a user is enough for an ISP to terminate a subscriber’s service.
“We see it as a false issue,” Phillips said. “[AFACT said] once you get the reason to suspect, that’s enough but we argue there needs to be a much higher level of evidence.”
All this funnels into reasonable steps for ISPs to take in order to combat piracy by their users.
iiNet saw this as the biggest battleground in the High Court hearing.
The Court will need to determine the amount of evidence that should be presented to ISPs before they take action against piracy on their networks. There is also the question of the amount of effort and resources ISPs are expected to expend to take reasonable steps.
How much effort should ISPs put into executing a graduated response system to tackle copyright infringement by users and how much money would they need to spend?
These are the big questions the High Court will need to answer.
December should prove to be an interesting month in ISP history.