AFACT v iiNet: Legal expert says it's far from over

iiNet may have won the battle, but the war looks far from over

iiNet's win in its civil case against the Australian Federation Against Copyright Theft (AFACT) in the Federal Court of Australia is just the start of a potentially long legal war, according to a Melbourne University copyright law expert.

In the wake of much industry and online applause for the decision by Justice Cowdroy to drop the case and award costs to ISP, iiNet, Melbourne University associate professor, David Brennan, said an appeal was likely and interested parties are "probably looking at 2011 or 2012 before a final judicial determination".

"I think it is wrong to see this as the be all and end all," Brennan said. "This is simply the opening battle or the first chapter in the legal story. It will, I think, have to play out all the way to the High Court and I wouldn't be surprised if the High Court granted leave either way the decision goes in the full Federal Court. I think the dissatisfied party would seek leave to the High Court after the full Federal Court decision and there is some degree of likelihood the High Court would grant that."

Both parties have suffered considerable financial expense to date in pursing the case and AFACT was ordered to pay iiNet's costs to the tune of $4 million. It is another reason AFACT will likely seek an appeal, Brennan argues.

"The cost of preparing an appeal book and having a three-day hearing is minuscule compared to the cost that has already been incurred," Brennan said.

The legal arguments put forward by Justice Cowdroy around the issue of authorisation liability, while unambiguous and "well-thought out" could also give rise to an appeal.

"For those of us involved in talking about copyright law it is good because the judge spells out exactly the basis upon which he makes his decision. In doing that he seems, in my view, to depart a little bit from what had emerged as an orthodoxy on authorisation liability," the associate professor said.

"One can understand that because these are new and difficult and different circumstances. The orthodoxy that had emerged was to say if there was a high degree of power to control and very little active encouragement or indifference, that could amount to authorisation. Or alternatively, if there were a lot of active encouragement and very little or marginal control that too could amount to authorisation. The judge, here, steps a little outside of that and simply says there is another aspect of authorisation and that is for anyone to engage in authorisation liability they have to provide the means."

In giving his reasons, Justice Cowdroy said iiNet only provided Internet access and, in doing so, had no responsibility for copyright infringement and abuse of peer-to-peer protocols like BitTorrent.

(Read the full judgment.)

"iiNet did not authorise infringement of copyright by its users," Cowdroy told an audience of 70 at the court.

"In the law of authorisation there is a distinction to be drawn of the means of copyright infringement... the mere provision of access to the Internet [does] not authorise infringement. iiNet has no control of the BitTorrent system and is not responsible for its use by users."

The judge also relied on several cases including a landmark copyright case involving the University of NSW library in 1975.

The University of NSW v Moorhouse (1975) case, in the High Court of Australia heard the Australian Copyright Council (ACC) engaged a UNSW graduate named Paul Brennan to make photocopies of pages of books by Frank Moorhouse at the UNSW library.

Moorhouse did not know Paul Brennan was asked to make copies of sections of his work, but later joined with the ACC to bring a test case against the university after he was informed of the breach of his copyrighted books.

After consideration of numerous copyright issues, the court found "the appellant (UNSW) authorised the doing on 28th September 1973 by Paul Brennan of the act of reproducing the literary work 'The Americans, Baby' in a material form and thereby infringed the respondents' copyright in the said work".

Justice Cowdroy, in contrast, found iiNet did not authorise copyright infringement as it did not provide the means in his opinion.

"I'm not sure myself whether this is the be all and end all and only one entity can provide the means," Brennan said. "If I said to you, I want you to photo copy this book that is in the library and here is a bag full of coins. Go to the library, feed the machine and make a complete copy of the book. Now, have I provided the means or have I simply provided the necessary precondition for infringement? It seems to me in that situation that I have provided the means as much as anyone. The whole idea that only one entity can be the means to an infringement is different and quite contestable."

In other words, Brennan argues AFACT will likely look to this kind of argument as grounds to launch an appeal.

"That is the key plank on which the whole decision rests."

Should the case make it all the way to the top of the judicial system, it is likely legislative changes will be made, Brennan added. However, the office of the Communications Minister, Stephen Conroy, has kept tight-lipped about possible legislative changes to telecommunications and copyright law in the wake of iiNet's victory.

"If there is liability found on iiNet [in appeals] then there will have to be legislation to manage that liability; I don't believe the current legislation is adequate," Brennan said. "If there is no liability found I think there is likely to be some pressure placed upon the parliament to refine the legislation to bolster the obligations on ISPs."

It is therefore "highly likely" intense lobbying from the film studios and TV stations will occur.

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