19 April 2011 Film and TV studios appeal to High Court in iiNet copyright case


In brief - Full Federal Court decision on iiNet appealed to the High Court

The consortium of film and television companies has gone to the High Court to appeal the decision that iiNet did not authorise copyright infringement via its internet service.  

Background to iiNet case

As mentioned in our previous article, Appeal dismissed - Full Federal Court confirms that iiNet is not liable for infringements by its users, in his majority judgment in the Full Federal Court appeal in this matter, His Honour Justice Emmett commented that even though the coalition of film and television companies which commenced the proceeding are not entitled to relief in this proceeding, "it does not follow that that is an end of the matter".

His Honour was right. The questions raised in the proceedings are ongoing as the consortium of film and television companies have now appealed the Full Federal Court decision to the High Court. They seek to overturn the ruling that iiNet did not authorise the acts of infringement that it knew occurred on its internet service.

View of Australian Federation Against Copyright Theft (AFACT)

A media release on the iiNet case issued by AFACT stated: "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". The film companies will argue that "iiNet did have sufficient knowledge, that it admitted the acts of infringement and that its CEO admitted on the stand that the evidence was ‘compelling’".

We will have to wait and see the outcome of the special leave application before we know if the court case has reached the end of the road. However, that may still not be the end of the matter.

iiNet proposes a new framework for content provision

In response to the protracted court proceedings in this matter, iiNet has suggested that “it’s time for the film and television industry and copyright holders to work with the [internet] industry to make their content legitimately available". More specifically, in an industry paper released by iiNet last month, Encouraging legitimate use of Online Content - An iiNet view, iiNet has called for copyright owners to make their content more readily and cheaply available online and for an independent body to be established to manage allegations of copyright infringement and to determine any penalties.

In the introduction to the paper, iiNet argues: "We believe the desire of rights holders to police infringements must also be matched by a concomitant effort to improve access to legitimate content, including by the use of new business models. iiNet does not support or encourage any breaches of Australian law, including infringement of the Copyright Act."

Internet Industry Association response

Following the Full Federal Court appeal, the Internet Industry Association (IIA) issued a statement on 11 March 2011, IIA Fastracks Industry Copyright Code, announcing that it would immediately start working on an industry code of practice for internet intermediaries, including ISPs, search, hosting and social media providers.

IIA stated: "Having closely reviewed the recent decision of the Full Federal Court, we've concluded it's both necessary and appropriate to develop a code of practice to give a wider range of internet intermediaries greater certainty around their legal rights and obligations. The iiNet case has provided us with welcome guidance on where responsibilities should begin and end, but falls short in defining reasonable steps intermediaries should take in responding to allegations of infringement by their users. The Code will address this gap."

We are continuing to follow this important issue and will provide further updates as it progresses.

For further information please contact Swaab Attorneys.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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