AFACT v iiNet: Government called to action

Service providers, rights holders and internet users are anxiously awaiting news of whether the Australian Federation Against Copyright Theft (AFACT) will further appeal the decision against it this week in the Federal Court, but both the industry body and defendant iiNet are clear on a single message: The Federal Government must step in.

Two of the three presiding Federal Court judges dismissed AFACT’s appeal against iiNet, in which the film studios representative alleged the ISP had authorised infringement of copyright by its users. It is widely expected that AFACT will appeal the decision, pushing proceedings to the High Court, but the body’s executive director, Neil Gane, said time would be taken before making a decision on the issue.

“It is too early to comment on the details of the decision or any next steps apart from saying that we will be taking our time now to examine the judgement in detail and consider all of our options,” he said.

However, in doorstop interviews held immediately after the court’s judgement, both Gane and iiNet chief executive, Michael Malone, called upon the Federal Government to intervene and clarify issues surrounding copyright infringement and the responsibilities of service providers once and for all.

“As it’s happening around the world in the UK and France, the only way you’re going to clarity is if the government steps in,” Malone said.

“I think the ISP industry has come together and has been having that common view all through this that we’re not encouraging customers to do this, and simply saying the ISPs are responsible is never going to get the required outcome.”

Gane pointed to AFACT’s submission (PDF) to the Department of Broadband, Communications and the Digital Economy’s convergence review into media and communications regulation, which recommended the Federal Government specifically include elements of intellectual property rights in its consideration.

Communications minister, Senator Stephen Conroy, recently stated that any changes to copyright legislation would only be considered pending the outcome of the appeal case but in a statement emailed to Computerworld Australia following the judgement, a spokesperson for the senator said the government would “carefully analyse” the policy implications of the case.

“As AFACT may seek leave to appeal to the High Court it would be inappropriate for me to make any further comment on this matter,” the email read.

The Attorney-General’s department did not respond to requests for comment at time of writing.

Nick Hart, senior consultant at law firm Truman Hoyle Lawyers, said the decision would likely have implications on legislation.

“Today’s Federal Court decision will not take the content or technology industries by surprise,” he said. “Although the next step is likely to be an application for special leave to appeal to the High Court, this decision will undoubtedly increase pressure on the Federal Government to pass laws to tackle illegal filesharing and piracy on the internet, as has occurred in New Zealand, France and the UK for example.”

Such changes would be required to precede any further actions from copyright owners against service providers. As part of the Federal Court’s judgement, Justice Emmett declared that despite the appeal’s dismissal, the provisions used to defend iiNet in proceedings may fail to stand to reason in future cases involving either the company or other service providers under similar matters.

Malone also warned that, despite the decision, rights holders could potentially litigate directly against those found or alleged to have illegally downloaded or distributed copyrighted material, as has occurred in the United States and other countries.

Dr Matthew Rimmer, associate director of research at the Australian National University’s College of Law, told Computerworld Australia that a High Court decision would be able to better deal with the case, particularly as the preceding cases had already outlined the technologies involved and surrounding issues of authorisation.

However, he agreed that current legislation provided little clarification on the issue of liability of intermediaries like iiNet and other carriage service providers.

“There’s a fundamental issue about whether or not the Australian approach to authorisation is a good one,” he said. “I think the safe harbours regime needs to be modernised, especially in this era of automated notices.

“Essentially the question of intermediary liability is never going to be resolved by a single case or legislative reform. There’s going to be ongoing war between the combatting parties on multiple platforms.”

He attributed the lack of conversation on the issue from the current Labor Government as evidence of possible division between ministers and an unwillingness to commit to legislative reform without a final court decision.

In the meantime, however, he warned international pushes by copyright owners for a ‘three strikes’ rule in other jurisdictions might continue to be pushed here, despite the clause being wiped from the international Anti-Counterfeiting Trade Agreement.

“I imagine there’ll be a lot of that after this litigation,” he said.

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