IIA drops anchor in AFACT case

James Riley
Wednesday, 09 September 2009 10:17

Opinion and Analysis

So the Internet Industry Association, the not-for-profit organisation charged with representing the interests of the internet industry, wants to be a ‘friend of the court’ in a case involving one of its highest profile members, iiNet.

Well, they would, wouldn’t they?

But given that it is one of the IIA’s highest-profile members that has been put up against a wall, the association seems motivated less by its claimed status as ‘friend of the court’, and more by its plain, old-fashioned role as a ‘friend of the membership.’

It’s hard to imagine it would seek to argue otherwise, but it is apparently going to give it a shot. Presumably the rest of the IIA membership is happy enough to shell out for a barrister of Clayton Utz proportions to make friendly entreaties to the Federal Court.

The IIA wrote to the parties involved on Friday – that is, the copyright holders led by Roadshow Entertainment and the Australian Federation Against Copyright Theft (AFACT) and iiNet – stating its plans to get involved in the case as an amicus curiae, or ‘friend of the court.’

The actual application to court has not yet been made, but is understood to still be in the works at Clayton Utz.

But that didn’t stop counsel for AFACT and the copyright crew telegraphing their plans to oppose any such applications, should it eventually lob into the court.

The test for an application to intervene as amicus curiae to be viewed in a positive light by the court is that the party must be of independent standing, and it must have something additional to add to the case.

Leaving aside whether or not the IIA is of independent standing, what is it that the IIA believe will be required to add? Moral support? Running commentary?

Is it likely that an industry association representing, for the most part, ISPs can deliver new information, new arguments – or hitherto and heretofore unconsidered legal considerations  – that Michael Malone and the rest of the team at ASX-listed ISP iiNet and its battalion of lawyers haven’t yet unearthed?

Nah, I didn’t think so either.

OK, now consider whether the IIA can be considered an ‘independent’ party. Independent from what? The South American Wheat Growers Association? Sure, why not?

But independent from a legal case involving a high-profile, fee-paying member? A member that the IIA represents to all manner of governments, departments and agencies as a lobbyist on issues of policy, pricing and regulation – including copyright issues?

Really?

All of which is academic until the application gets into the hands of Justice Cowdroy.

Interesting, though, that his comments about the potential application was to wonder aloud about what additional information the IIA might contribute – without going to the question of independence.

As a final point. The iiNet/AFACT/Roadshow court business has barely started. How would the IIA know whether it has anything to additional to offer at this point or not? We haven’t even seen the full shape of the arguments yet.

Walking the halls of Parliament as an agent of influence is one thing. But do we really need lobbyists trying to press buttons in the courts as well?