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Digital Legal Top Stories
AFACT takes iiNet lawsuit to final appeals court
By CMU Editorial | Published on Friday 25 March 2011
Aussie film and TV industry group AFACT – or the Australian Federation Against Copyright Theft – is going to have one more stab at proving that internet service provider iiNet is liable for ‘authorising infringement’ by failing to stop its customers from accessing and sharing unlicensed content over its servers.
As previously reported, AFACT claims that iiNet could monitor its networks for illegal file-sharing and put filters in place to stop, or at least hinder, the distribution of unlicensed content and, by failing to do so, the company is guilty of authorising infringement under Australian copyright law.
However, on two previous occasions Aussie judges have failed to concur. In early 2010, Sydney’s Federal Court ruled in favour of iiNet, which argue it is not its job to monitor what content its customers access and share, and last month an appeals court backed that earlier judgment, saying iiNet was not obliged under copyright law to filter out any infringing content.
One more avenue of appeal is open to AFACT, and the trade body confirmed yesterday it was pursuing it, telling reporters that the fact the appeals court accepted iiNet had the power to prevent (or at least hinder) infringement means – according to the body’s interpretation of authorising infringement, based in part on the earlier Kazaa ruling in Australia – that the net firm has an obligation to do so.
AFACT’s Executive Director Neil Gane told reporters: “The Full Federal Court unanimously found that iiNet had the power to prevent the infringements of its users from occurring and that there were reasonable steps it could have taken, including issuing warnings. However two judges of the Full Court went on to find that iiNet had not authorized the infringements of its users and that is what we are appealing. We say they did not apply the legal test for authorization correctly”.
Needless to say, iiNet criticised AFACT’s decision to continue with this litigation, telling reporters: “It’s time for the film industry and copyright holders to work with the [digital] industry to make their content legitimately available”.
Although a movie industry case, the outcome of this lawsuit is relevant to the Australian music business, too. If AFACT was victorious it would potentially force ISPs in the country to introduce a three-strikes style anti-piracy system without there being a specific change in the law, as there has been here in the UK. It would also likely motivate the ISP sector to lobby for new laws akin to America’s safe harbour provisions which specifically protect net companies from liability when their customers use their networks for illegal activities.
So, all content industries, net firms and law makers in Australia will be watching the final stage of the AFACT v iiNet case with interest.
