AFACT and iiNet: halfway through the trial what have we learned?

Hamish Fraser
Monday, 19 October 2009 14:39

Your IT - Home IT

The trial that is being hailed by many as the ultimate test of just who is responsible for what occurs on the internet has adjourned until November.  Set down for four weeks of hearing before Justice Cowdroy in the Federal Court, this break was always part of the Court’s schedule.

AFACT is an acronym for the industry body, Australian Federation Against Copyright Theft Ltd, which was established in 2004 with the stated objective to “protect the film and television industry, retailers and movie fans from the adverse impact of copyright theft in Australia.”  AFACT’s members are most of the major film studios, including the usual suspects - Village Roadshow, Walt Disney, Paramount, Sony and many others.

The case before the Federal Court was actually commenced by 34 of the film studios and owners of copyright in a large number of motion pictures and television programs, however they have for convenience been referred to as AFACT in all the recent media.  The action was commenced in November 2008, although not surprisingly. and as was revealed during the opening submissions, preparations began at least a year before then.

AFACT has sued iiNet alleging that amongst other things, as an ISP, it offered internet services to its customers, those customers used the internet services to make available, transmit and copy films and TV programs and therefore infringed the copyright in them.  AFACT goes on to say that iiNet authorised that copyright breach because it: knew or should have suspected that it was occurring; took no action in response to AFACT’s ongoing advices to iiNet, that it was occurring; and encouraged its customers to continue to do so and did not ‘turn off’ those of its customers who were known to be doing so.

AFACT also asserts that iiNet had the power, both technologically and through its commercial and contractual relationships with its customers to prevent the infringement and it failed to do so.

The Copyright Act of 1968 (as amended) is long and complex, particularly with regard to many of the recent changes to try and keep up with technology.  However since 1968 when the current Act was passed, it been an unchanged element of copyright law that a person infringes the copyright if they do the act themselves, “or authorises the doing in Australia of, any act comprised in the copyright”.  That is, not only are the individual users who download the movies infringing copyright, but any person that authorises the doing of the act is also infringing copyright.

What was revealed during the opening submissions was that in preparing for this case, AFACT had engaged two people to become iiNet customers, download or share movies in ways they themselves knew to be in breach of copyright.  This certainly meant that AFACT was aware of the infringing activity and could confidently tell iiNet what was occurring.

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