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Apr 20, 2012

AFACT's appeal against iiNet decision dismissed

Internet service provider iiNet just won its long-running legal battle against the massed forces of Hollywood, but there's some gotchas buried in the High Court decision.

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The phones must be running hot in Attorney-General Nicola Roxon’s and Communication Minister Stephen Conroy’s offices this afternoon. Internet service provider iiNet just won its long-running legal battle against the massed forces of Hollywood, but there’s some gotchas buried in the High Court decision.

The #iiTrial, officially Roadshow Films & others v iiNet Limited, kicked off in the Federal Court in 2009 when 34 Australian and US film and TV copyright-holders alleged that iiNet was “authorising” (in the technical legal sense) the copyright-infringing actions of its customers by failing to act on the complaints they’d filed. The case was informally called AFACT v iiNet after the industry lobby, the Australian Federation Against Copyright Theft.

iiNet enjoyed a comprehensive win in February 2010, and won the Full Federal Court appeal (kinda) in February 2011.

This High Court appeal being unanimously dismissed makes it a three-nil win for the ISP, as the summary of the judgement explains.

“The court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films. Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers. Further, the court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts.”

But as the court’s full decision makes clear in paragraph five, the key question in this appeal, whether iiNet authorised its customers’ copyright-infringing acts, “depends upon all the facts of the case”. That is, things might have turned out differently had AFACT or iiNet handled things differently. We’ll never know.

The court also provides some less-than-subtle hints that the government might wish to have a look at this.

When first enacted in 1968, the Copyright Act ran for around 100 pages. But by 2007 it was more than five times the size, what with changes needed for the US Free Trade Agreement as well as massive technological changes. In paragraph 120:

“The history of the Act since 1968 shows that the Parliament is more responsive to pressures for change to accommodate new circumstances than in the past. Those pressures are best resolved by legislative processes rather than by any extreme exercise in statutory interpretation by judicial decisions.”

It’s easy to imagine the government listening with sympathy once more to the poor, struggling copyright industries. Only today the PM announced a $12.8 million bribe, sorry, gift to the producers of The Wolverine. That certainly “sends a message”, as the phrase goes, no?

More ominously, from the internet industry’s point of view, is this from paragraph 79:

“The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes, some of which incorporate co-operative industry protocols, some of which require judicial involvement in the termination of internet accounts, and some of which provide for the sharing of enforcement costs between ISPs and copyright owners.”

We’re talking the so-called “graduated response” and “three-strikes” laws such as those already enacted very close to home in New Zealand.

A handful of countries have said such laws are unconstitutional. Internet access is now such a fundamental part of society that access is a human right. Cutting off a household to punish one transgressor is unreasonable. But of course that freedom to communicate human right thing ain’t so strongly legislated here in Australia.

As deadline approaches the legal experts are still perusing the decision and discussing it — via Twitter, of course.

“Well, on a first reading, the #iitrial judgment looks like a genuine win, and, as @rgibli predicted, a retreat from the FFC’s [Full Federal Court’s] views,” tweeted Kimberlee Weatherall, associate professor at the University of Sydney’s law school.

“The finding that the power to terminate subscribers was indirect only is a retreat from FFC’s view that termination could be reasonable,” she added.

Peter Black, who teaches internet law at the Queensland University of Technology, agreed. “It does indeed — it is most encouraging. But it also just means that the battle shifts squarely to law reform and the development of an industry protocol,” he tweeted.

As the High Court said in paragraph 77:

“The appellants’ submission … assumes obligations on the part of an ISP which the Copyright Act does not impose.”

So let’s just change the Copyright Act, right? Stand by.

Stilgherrian —


Technology writer and broadcaster

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37 thoughts on “AFACT’s appeal against iiNet decision dismissed

  1. Clytie

    I wouldn’t worry about adequate use of the NBN. Either we get a decent Netflix/Hulu provider, or people will still find a way to get movies and TV shows we currently aren’t allowed to access in a timely manner, or at all.

    This also applies to ebooks: remove geographic limitations, and get Hachette and HarperCollins to reverse their pre-Christmas 2011 decision to double ebook prices for Australians, and you have a working market. Maintain those unreasonable barriers, and watch people leave the market and find their own material. (I, personally, am so sick of having to write to authors and tell them I’m not allowed to buy their ebooks.)

    As Malone said in the ABC news article today, the best way to reduce content piracy is to provide timely and accessible legal content. For example, Baen Books have a Free Library of older titles and they sell all titles DRM-free: Baen have some of the top SF, fantasy and military authors but are rarely pirated.

    Did anyone else see the news on the French three-strikes law? They did a study on its results. Piracy was down by 60%, and sales … continued to fall.

    So, we invest a lot of taxpayer money in further restricting human rights in our country, criminalize downloading a 99c song, prosecute some hapless kids and bankrupt or imprison them, and the copyright industry will continue to lose money, not because its audience is dishonest, but because it has some seriously inefficient practices. Amid all the talk about productivity, you’d think these guys would try to improve access to their material, not waste time and money locking it away from willing customers.

  2. Stilgherrian

    Sorry, folks, here is the correct link to the summary of the judgement.

    Here also is the audio of a conversation I just had on ABC 702 Sydney with me, presenter Richard Glover, and AFACT managing director Neil Gane.

    @Michael de Angelos: Your description of Bernard Keane’s attitude to organisations like Facebook, Google etc is remarkably wide of the mark. I suggest you pop back and re-read what he actually writes — and in particular differentiate between stuff he reports other people as having said and his own opinions.

    Overall, the depiction of technically-literate writers and an undifferentiated mass of internet-supporters is both inaccurate and personally insulting.

    Equating Twitter to traditional publishing is something I personally think is utterly, utterly wrong.

    Twitter is the internet equivalent of gossip, people talking in a bar, or around the family dinner table — with the difference that it happens to be visible to others. It’s a conversation. Conversations are not “moderated” by editors who decide what can and can’t be said. They are guided by the reactions of those around us.

    We soon know when we say something out loud that we shouldn’t have. We see the other person’s body language, change the subject, apologise or just STFU. I believe the same sorts of social behaviours will evolve in time.

  3. Michael de Angelos

    Stilgherrian :
    you could have supplied a link to support your condemnation of my post but you are wrong .

    On the 17th Feb 2012 in an article titled “Who’s sued Twitter? ” BK is clearly hostile to the outcome of the case and to anyone who dares defend their reputation but at least he appears to be in agreement with Andrew Bolt.

    BK even proposes that it is ludicrous that a profit making corporation like Twitter should subject it’s emplyees to checking whether tweets are libelous or not.

    You make a bizarre comparison to twitter etc being like gossip around the dinner table. It is not-it can be gossip or defamations broadcast to the world and quite deliberately whereas those gossiping in private are not usually (but can be )open to defamation claims.

    You do not speak for all tech writers as I do not speak for the public so your personal feelings of insult are rediculous. A bit of a nerve really taking on umbrage on behalf of the world’s technical journalists but not unusual in an industry that infers it knows what is best for the general public.

    So many people (including many tech writers)infer that the world has changed because of the internet (questionable) and therefore all boundaries have vanished. They seem to have fused the actual mechanics of airwaves or in this case the internet with the interests of private corporations.

    The world did not change it’s morals because the telephone or the printing press was invented. Words said by indiviuals over the telephone or published in print can be damaging but you don’t blame the telephone-you blame the conveyer of information.

    On the internet it is the corporations providing platforms that are attempting to use weasel interpretations of the law to avoid responsibilty as in BK’s bizarre defence of Twitter and it’s billions of dollars that he does not want to see spent on a small band of employees ensuring defamation is not perpetuated by Twitterers.

    The net is here but people deserve the same rights they have always had to protect reputations. And it isn’t up to indiviuals to relinquish those rights because a few US billionaires have decided the game has changed.

    Meski: no, the world doesn’t need to change nor countries surrender their sovereign right to create laws because Yahoo or Blogger appeared on the scene. The more successful legal actions taken against these corporations (as recent ones against Yahoo and Google have been in Australia) the sooner they will protect people’s right s not to be defamed.
    And it was Zuckerberg who recently said that as privacy is basically ‘over’ people may as well surrender to Facebook’s ownership of your information.

    Anyone who thinks “social behaviours will evolve in time’ has not taken note that all the internet has done is provide information overload , easy access to porn and a platform for people to hide behind screen names and post their Poison Pen letters en masse.

    Intelligence (apart for government spying) is not growing because of the net. The oppositie is happening-a dumbing down is occuring.

  4. Groucho


    I’m not sure exactly what your suggesting. But if you are advocating a limit on bandwidth or quota to satisfy the failing business models of an industry that refuses to adapt then I suggest you’ve lost all persepective.

    Like most things in technology when bottlenecks are removed new industry develops and things that were previously science fiction become possible. Going back to dial up would be a good example. Think of all the legal intenet traffic that would affect.

    It wasn’t so long ago the all music downloaded online was piracy. Now we have iTunes and other services.

    P2P with something like the NBN becomes even more attractive for legitimate use.

    Limiting bandwidth would presumable stop end users from chosing which legal HiDef (and not just today’1 1080p) services to subscribe to and from which regions.

    What the industry is advocating has less to do with protecting IP and more about protecting a business model. It is the equivalent of region coding.

    Apple dropped DRM and guess what? They still make lots of money. I don’t even think twice about where to get my music from even if it is free ITunes is so easy.

    I’ve got a couple hundred gigs of my own generated hidef home movies and pictures. What I would give for the bandwidth to easily do automated regular backups to the cloud.

    Its a service that could be provided at low cost by smaller businesses with the NBN or I could just set something up at grandma’s house and back up to that.

    Interestingly I wonder how business would react if others were given oversight of every aspect of their activities just in case.

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