High Court Dismisses AFACT Appeal

AFACT was never going to lie down quietly over its two consecutive court losses to iiNet over Internet piracy , and the result has just been handed down for its High Court appeal; AFACT's appeal has been dismissed. Update: AFACT is now calling on the Government to take up the copyright fight. The news broke via a a tweet from iiNet's Michael Malone, but the judgement summary is also online now for your perusal. For the time strapped, here's the key part:

The High Court unanimously dismissed the appeal. The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' accounts. For these reasons, the Court held that it could not be inferred from iiNet's inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants' films by its customers.

The action has been a long-term one; AFACT commenced legal action against iiNet in November 2008 after a five month investigation; the Federal Court started hearings in October 2009, ruled against AFACT in February 2010. AFACT appealed to the Full Federal Court in August 2010, and lost that one too. Special leave was granted to AFACT to take the matter to the High Court, and that's the ruling we've got today.

Quite what this matter means for the mooted "five strikes" proposal is also a bit unclear.

AFACT has indicated it's holding a press conference to discuss the matter at midday, while iiNet's due to hold a conference call at one o'clock. We'll update with their statements once they've gone public with them.

The Pirate Party has already released a statement (no doubt it had two ready to go), stating that

"I am sure it comes as no surprise to anyone that we welcome this ruling,” said Brendan Molloy, Secretary of Pirate Party Australia. "We reiterate that ISPs behave similarly to the postal service – they are the carriers of the message, and that message should remain private. It is not their business to police users, but merely to comply where necessary with authorities. ISPs are not, and should never be, responsible to anyone other than their subscribers and local law enforcement agencies."

"However, this is not the end of the issue. We have continually protested against the closed-door meetings conducted by the Attorney-General’s department, in which industry representatives are given priority, and the public are ignored. The citizens of Australia are being refused participation in the ‘piracy debate,’ when they should be the most vocal of concerned parties," they continued. "Copyright is not just an issue for rights holders and service providers – the voice of the public must be given priority above all else."

Update: iiNet has released an official statement quoting CEO Michael Malone. Here are the highlights:

"Today’s High Court five-nil ruling confirms that iiNet is not liable for ‘authorising’ the conduct of its customers who engaged in online copyright infringement. This marks the end of more than three years of legal argument and challenges . . ." Mr Malone again reminded the film industry that increasing the availability of lawful, online content in a more timely, affordable and reasonably priced manner, brought the focus back to customers and was the best method to protect content owners’ copyright. He said there was strong evidence that content partnerships and agreements between ISPs, legal websites and copyright holders had done more to reduce ‘piracy’ and to showcase copyright holders’ materials than this unproductive legal battle. “Increasing the availability of licensed digital content is the best, most practical approach to meet consumer demand and protect copyright,” Mr Malone said. “We have consistently said we are eager to work with the studios to make their very desirable material legitimately available to a waiting customer base - and that offer remains the same today."

Update: In its official statement, Neil Gane, AFACT managing director said “Now that we have taken this issue to the highest court in the land, it is time for Government to act. We are confident the Government would not want copyright infringement to go on unabated across Australian networks especially with the rollout of the NBN.”

The AFACT statement doesn’t offer any details of how such legislation might work.

Update: Communications Alliance CEO John Stanton has issued a statement:

"The Court’s unanimous finding that the conduct of iiNet did not constitute authorisation of infringing activity is a particularly welcome piece of guidance for all players in the industry. We hope that the High Court judgment will help us accelerate the process of agreeing with rights holders the basis for an industry-led scheme that will discourage copyright infringement, appropriately protect customers’ rights and benefit the industry as a whole."



    Fuck yes, AFACT have been the bane of my legally purchased dvds long enough, nice to see them get bitch slapped!

    AFACT just wants the ability to punish people without needing to collect evidence in a legal manner and to then provide that evidence to a court to decide on.


    I always thought this was pretty accurate

    It is nice to see there is still some common sense in the Australian Court System.

    Why only iiNet though? Telstra, Optus, TPG, DODO...

      They went for Iinet because back then they were safe "middle" ground, Telstra would have/have had deeper pockets to fight back with more expensive lawyers.

    Presumably AFACT will now lobby the fed govt to make changes to the Copyright Act now that this approach has failed.

      Of course they most likely already have been. What with "secret" meetings with the US et al.

      Long story short - Telstra and Optus put up the money for IInet to take the heat

      IInet couldn't have lasted this long in court without their backing at all

      Predictable. More government war against the people on behalf of big business.

        And US big business at that. They are not even honest enough to admit who they are

    Its ISP in-specific mate. They aimed their guns at iinet in the first place, but im pretty sure this is the 'policy' in general

    AFACT, change your business model. See thearters as dinsours, make more money...simple really.

      It's not the theaters that are the problem. Stop making 200 million dollar movies that wouldn't tax the mind of an eight year old. I don't mind paying for movies that are actually worth paying for but I'm not paying a ridiculous $25 to watch a piece of absolute crap so jammed full of product placement that they should be paying me. BTW I'm not going to waste bandwidth downloading the crap either.

    Wow, common sense prevailed!

    How soon till some fat, Hollywood funded official from the USA takes this up as a trade matter with the Australian Government?

    That last bit is so concerning...

    Now that they admit they lost in the highest court of law in the land, they now want to buy and bully themselves a legislative fix! It's something to be vigilant against

      I know. The attempts to find out what the Attorney General's department is up to on this issue have failed. The responses to the FOI requests wouldn't even say who they are talking to about changing the legislation.

      The pessimist in me thinks that they are negotiating with a bunch of studios to bring in a really unpopular law and don't want the public to find out.

    Interesting line from the AFACT monkey: "We are confident the Government would not want copyright infringement to go on unabated across Australian networks especially with the rollout of the NBN"

    Are they suggesting that the government would be at fault if copyright infringements occurred in the NBN? Have the read the high courts judgement of their own case? idiots!

    ...meanwhile on the other side of the globe, the colpletely opposite decision has been made - the highest court in the EU has ruled that Swedish internet service providers can be compelled by courts to turn over private information of subscribers suspected of engaging in piracy or copyright infringement...

    Just a question of time before groups in Australia will use that case as a precedent to lobby the federal government down here.


    In all this one needs to keep in mind an important piece of History: why is Hollywood on the west coast of the USA when settlement started in the East? The movie studios stole Thomas Edison's Intellectual property as set up shop at the farthest reach of the law.

    Yes, that's right an industry founded on Intellectual property theft is complaining about intellectual property theft.

    Based on that, and the fact they won't modernise their business model, I couldn't give a stuff about what happens to them. I hope our Government won't cave into them.

    "It means that the content owners needs to decide if they are going to continue to try to keep hold of their 20th century business model or open an online shop,"
    I wonder if the dickheads in the film industry have even considered something like that^. I guess they haven't quite figured out it's the happy medium they need, just like the music industry.

    Quote taken from http://www.theage.com.au/technology/technology-news/hollywood-loses-final-appeal-in-piracy-case-20120420-1xb12.html

    I download movies that I own simply for convenience. I will rent a movie. If i like the movie and feel it is worth the money I will buy it. However, the case usualy remains sealed in its plastic. I then download the movie so that I can watch it at will. Recently I saw a DVD in Coles (I cant remember the title because it didnt interest me) that had the DVD but also had a digital copy that could be instaled on a computer. This is a great idaa and would prevent me from having to use my download on movies.

      Yeah a lot of new movies which come on Bluray also come with a DVD and digital copy

    Because it's statistically probable I suspect that AFACT and its component corporate entities have been communicating illegal activities over my internet. I demand to have all of their records.
    ...I can do that right? Or do I need to form a massive sociopathic corporate entity first?

      I agree that the process did not seem ideal, and I hope they get much btteer at it. However, in their defense, I would say that many, many people have had similarly fraught (or worse!) experiences in trying to get ADSL or ADSL2+ connected to the house over the last decade, it might simply be the case that initially setting up/ trouble shooting these connections is sometimes challenging. e.g.:- it took over 20 days to switch from a ADSL2+ account to an ADSL2+ with home phone account on TPG, and I needed to make a line account with telstra first before they could do it, which later then got cancelled. The telstra line took over a week because the technician had accidently wired our house to the townhouse next door, so we were getting their calls (20 days without internet OMFG!).- I remember once in about 2001 having to wait months for an ADSL connection because the exchange had no spare ADSL connections available at the time.- a friend at the moment is stuck with crap internet because: his house is pair-gain wired so cant get ADSL2+, telstra cable doesnt run in his street, and optus is saying that it will cost $3k to install a new pole and cable to their house, because his pool is in the way and they won't install cable across a pool.

    Afact isnt wrong , people shouldnt steal content from the internet. Its acurately capturing and prosecuting those people that is the issue. I think the government should help them in that regard with legislation.

    AFACT is wrong, in every way. When everyone is a criminal, there is something seriously wrong with the legal system.

    If you have a law and everyone goes out and just breaks it, maybe there is something wrong with the law. Like one of the High Court Judges suggested to the AFACT barrister last year
    "If you cannot work out a remedy, maybe there has not been an abuse of a right." (Gumnow)

    “The Court’s unanimous finding that the conduct of iiNet did not constitute authorisation of infringing activity is a particularly welcome piece of guidance for all players in the industry. We hope that the High Court judgment will help us accelerate the process of agreeing with rights holders the basis for an industry-led scheme that will discourage copyright infringement, appropriately protect customers’ rights and benefit the industry as a whole.”

    Damn right, now about that copyright on Waltzing Matilda over in the USA...

Join the discussion!

Trending Stories Right Now