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

Hamish Fraser
Monday, 19 October 2009 14:39

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Of course, iiNet has said that just because AFACT’s members knew there was copyright infringement occurring, does not mean that iiNet should rely on a copyright owners say-so or that iiNet was authorising the conduct.  One of the fundamental arguments ISPs have relied on concerns “who are the police?”.  An analogy that demonstrated this well during iiNet’s opening submissions was to say that  iiNet was akin to Australia Post and that Australia Post should not be liable for drugs sent through the mail in letters.

It is this issue that makes the case so important.  If AFACT is successful, then ISPs will have to adopt the role of police (or Judge and jury) and potentially fundamentally shift the way,  and certainly the cost at which, the internet is supplied.  It also raises very complex questions around shared internet access and just who is responsible for what.

Many people thought that the “Safe Harbour” provisions introduced into the Copyright Act in 2005 were sufficient protection for copyright owners and ISPs alike.  This case challenges that and threatens to move copyright protection and enforcement one step further

Regardless of the outcome, this case is likely to be appealed (to the Full Federal Court and perhaps the High Court) and even then is likely to result in some intense lobbying for legislative reform whoever wins.

Tales from Twitter

Whilst the case itself has generated a lot of interest, an interesting side show developed as two journalists were “tweeting” live from the Courtroom.  Traditionally, Courtrooms have frowned upon live media, and video and audio recordings are still prohibited, however it seems the Court was aware of these journalists’ tweets and at least tacitly approved of it.

Twitter from the Courtroom does raise an interesting dynamic.  If the journalist is on the payroll of a media outlet, but is giving live updates that can be followed by anyone with a web browser – where is the benefit for the employer in having them there?  Whether it was that or other motives, one of the journalists stopped tweeting a few days into the trial.

Court cases are often very boring, loaded with complex questions directed at a particular issue that is not apparent to those in the gallery, or involves a discussion around confidential documents, so the general public simply cannot know what is being discussed.  Certainly, following the tweets from the court room, while interesting for a lawyer, suggests this case was no exception.

Court cases themselves rarely provide the entertainment so often seen in Hollywood or even Judge Judy.  Indeed it would be surprising (if not a little depressing) if that were the case.  A Courtroom is a place where work gets done.  That is, the work of getting evidence of the facts in dispute before a Judge and making legal argument to the Court about how the facts support the legal conclusion.  And it will be the legal conclusion that this Court reaches and the basis on which it does so that will be most interesting.  

Will Twitter continue to be used and grow as an essential weapon in the modern journalist’s arsenal?  Almost certainly, well, at least until the Court allows video or audio recordings to be made.

Hamish Fraser is a partner with new economy law firm Truman Hoyle.

Disclosure: At time of writing the author has not seen the final amended pleadings. The author has worked for Optus and holds shares in the company.