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Tuesday, 29 November 2011 13:44

iiNet & AFACT face off in copyright appeal


Ahead of tomorrow's High Court appeal hearing in the movie industry's long running case against iiNet for allegedly authorising copyright infringement by its customers both sides have expressed confidence in emerging victorious.

iiNet CEO Michael Malone said he was confident the High Court would reaffirm and strengthen the Federal Court's earlier judgments and clear his company of copyright breaches.

 "We go into this latest legal round anticipating our successes in Federal Court in February 2010 and 2011 will be reaffirmed by the High Court," he said. "Those judgments demonstrated that the allegations against us were proven to be unfounded. iiNet has never in any way supported or encouraged breaches of the law, including breaches of the Copyright Act."

iiNet has also appealed against the Full Court's rejection of its defence, including its defence under the Telecommunications Act. The movies studios are seeking to have the High Court confirm that rejection.

Malone re-iterated his call on the movie industry to "increase lawful online content in a more timely, affordable and competitively priced manner as the best method to protect content owners copyright."

 He said iiNet continues to stand ready to work with the movie and Internet industry to develop, implement and promote new approaches as well as implementing a commonsense, effective and appropriate scheme to protect copyright, educate consumers and change infringing behaviour.

Neil Gane the executive director of the Australian Federation Against Copyright Theft (AFACT) - representing the 34 plaintiffs in the case said it was clear that the law of authorisation of copyright infringement was intended to apply to ISPs.
"The Full Federal Court unanimously recognised that ISPs could be found liable for authorising the infringements of their users. The Court also found that iiNet had the power to prevent the infringements by its users from occurring and that there were reasonable steps it could have taken, including issuing warnings. The majority of the court did not accept iiNet's argument that establishing a system of warning and mitigation measures was either too difficult or costly.
However two judges of the Full Court went on to find that iiNet had not authorised the infringements of its users and it is this conclusion that the movie studios are appealing.


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"We say they applied a different and higher test for knowledge contrary to the principles in the seminal authority on authorisation, Moorhouse, which principles were codified in 2000 as part of the Digital Agenda Act," Gane said.

Both sides agree that Moorhouse, and the interpretation of Moorhouse will be crucial. In a briefing on the appeal in October, Graham Phillips, a partner in law firm Herbert Geer who has been acting for iiNet throughout the case, said: "Both sides say they win based on an assessment of Moorhouse, but both sides arguments are poles apart, which shows there is a lot of uncertainty in how to read what is the principal authorisation case. So it is important for the High Court to give some clarity on how you determine authorisation."

Phillips said the core issue for the judges would be to decide what conduct constitutes 'authorisation' to breach copyright. "This is the first time the High Court will have seriously looked at the authorisation issue since the Moorhouse case in 1975."

The High Court hearing will commence at 10:15am on 30 November and continue on 1-2 December in Court Room No 1. iiNet is represented by Herbert Geer Lawyers. Counsel for iiNet are Richard Cobden SC, Richard Lancaster SC and Chris Burgess.

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