High Court Dismisses AFACT Appeal

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.”