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Monday, 16 April 2012 08:55

High Court ruling on iiNet copyright case due on Friday

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The High Court is due to hand down its decision on the movie studios' long-running bid to nail iiNet for sanctioning breach of copyright by failing to stop its customers to download copyrighted movies over the Internet.

The judgement will be handed down at 10.00am on Friday 20 April, AEST, closing another chapter in a saga that started in November 2008 when Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox and Disney and the Seven Network initiated the action against iiNet.

The case finally came before the Federal Court in Sydney in October 2009 before Justice Dennis Cowdroy, who handed down his judgement on 4 February 2010, delivering a comprehensive victory to iiNet.

The movie studies immediately appealed Cowdroy's ruling. The appeal was heard by the Federal Court in Sydney before justices Emmett, Jagot and Nicholas in August 2010. They handed down their judgement on 24 February 2011, dismissing the movie studios' appeal and confirming that iiNet had not authorised breach of copyright when its subscribers downloaded copyrighted movies from the Internet.

However the judgement was not unequivocal and overturned part of Cowdroy's judgement. The movie studios immediately sought leave to appeal the decision to the high court. That leave was granted in August 2011 and the hearings took place from 30 November to 2 December.

In a briefing before the hearing, Graham Phillips, a partner in law firm Herbert Geer who had been acting for iiNet throughout the case, said: "The case is primarily around the authorisation issue so that will be at the heart of it - whether or not iiNet is found to have authorised infringement by its users...This is the first time the High Court will have seriously looked at the authorisation issue since the Moorhouse case in 1975."

According to an article by Lionel Docker in the Media and Arts Law Review (2002): "In the Moorhouse case, the University of New South Wales (UNSW) had placed a number of photocopying machines in its library for the use of students. A copy of an anthology of short stories by Frank Moorhouse was copied and was used as the subject of a test case on authorisation.

"The High Court held that the conduct of UNSW in placing photocopying machines in its library for the use of students without any copyright warning notices or supervision constituted an invitation to students to infringe copyright."

The Copyright Act was subsequently amended to provide protection in relation to photocopiers installed in libraries or archives provided that a copyright notice is prominently displayed. The Digital Agenda Act extended that protection to computers installed in libraries or archives.

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