Date set for appeal in iiNet copyright case

The Federal Court has announced that the Australian Federation Against Copyright Theft’s appeal in its copyright case against iiNet will begin August 2.

The Federation, representing some of the world’s largest entertainment groups, intends to contest the ruling which stated iiNet did not infringe copyright laws by providing internet access to downloaders of illegal copies of television shows and films.

In February, AFACT said the judgement left open an “unworkable online environment for content creators and content providers” and represented “a serious threat to Australia’s digital economy”.

“The court found large scale copyright infringements, that iiNet knew were occurring, that iiNet had the contractual and technical capacity to stop them and iiNet did nothing about them,” AFACT executive director Neil Gane said in a statement at the time.

“In line with previous case law, this would have amounted to authorisation of copyright infringement.”

The decision found iiNet was not liable for copyright infringements performed by its customers, even though it was providing them the internet access to do so. Justice Cowdroy said iiNet was not liable because simply providing internet access was not enough to constitute a violation.

Cowdroy said the situation would be different if iiNet was actually providing them direct means of downloading material, such as a file-sharing program, but merely providing internet access was not enough.

But Gane alleges iiNet should be liable for the infringements as the company was aware they were taking place, but still didn’t shut down customer accounts. Malone argued the company passed on infringement notices to police, but shouldn’t have had to act as the police force itself.

“If this decision stands, the ISPs have all the protection without any of the responsibility,” Gane said.

“By allowing internet companies like iiNet to turn a blind eye to copyright theft, the decision harms not just the studios that produce and distribute movies, but also Australia’s creative community and all those whose livelihoods depend on a vibrant entertainment industry,” he said.

iiNet managing director Michael Malone said over the weekend the company will strongly defend the Federal Court’s decision, but it has also filed a notice of contention for some aspects of the case it believes did not swing in its favour.

These include statements from Cowdroy regarding the company’s knowledge of copyright infringements, and how that might affect certain interpretations of authorisation of illegal downloading. Additionally, the company will seek clarification on a finding which states iiNet could act on infringement notices in some circumstances.

“We go into this latest legal round anticipating we will come out in an even stronger position than when we won in February,” Malone said. “Justice Cowdroy’s judgment was unequivocally in our favour and we are confident the Full Court will confirm his ruling and strengthen it.”

“Neither the original case nor this latest appeal will stop piracy – even if in the unlikely event they won the appeal.”

Instead, Malone said the Federation should assist entertainment groups in developing new business models, such as putting content online for easier access.

“More legal proceedings are not the solution. New approaches and models, like Hulu and Freezone, are the most effective solution to the problem, as acknowledged by the studios in the original proceedings, not more court hearings,” Malone said.

“We continue to stand ready to work with the film and television industry to develop, implement and promote these new approaches and models.”

The Federal Court hearing in August will be held before Justices Emmett, Jagot and Nicholas.


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