After yesterday’s Federal Court decision clearing iiNet of responsibility for copyright infringement by their customers, the Australian Federation Against Copyright theft is considering its next steps.

As well they might. Woven through Justice Dennis Cowdroy’s ruling is a comprehensive slapdown not only of AFACT’s conduct in this case but, I believe, the movie industry’s whole approach of, as tech blog Ars Technica put it, forcing ISPs to play copyright cop.

As Crikey reported, Justice Cowdroy noted “The exact nature of the relationship between the applicants and AFACT is not clear”. But that’s just the beginning of his criticism.

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“The AFACT notifications [to iiNet of alleged copyright infringement] are not statutory declarations, nor do they have any statutory basis,” he said.

“The tone of the letter …  seeks to imply that AFACT is some form of quasi-statutory body whose requests required compliance.”

The applicants also appeared to be trying to equate high-volume internet use with copyright infringing behaviour, something Justice Cowdroy described as “one of the more adventurous submissions”.

He also noted that AFACT “blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright Theft.”

Justice Cowdroy rejected attacks on iiNet CEO Michael Malone’s credit as a witness, describing his cross-examination as “gruelling and unnecessarily hostile” and “intemperate”.

“Merely because the views expressed by Mr Malone did not accord with the interests of the applicants does not render those views ‘extreme’,” he said. “Such posture tended to convolute these proceedings.

“The applicants appear to premise their submissions on a somewhat binary view of the world whereby failure to do all that is requested and possible to co-operate with copyright owners to stop infringement occurring, constitutes approval of copyright infringement. Such view is not the law. It is possible to be neutral. It is possible to prefer one’s own interests to those of the copyright owners.”

There’s more in this handy compilation on Melbourne lawyer Robert Corr’s personal blog.

“Obviously AFACT is disappointed by the decision,” their spokesperson told Crikey this morning. “They are still reviewing the judgement and they will respond in due course.

“AFACT’s membership has always been clearly identified on their website,” they said.

“The judgement makes clear that infringements were occurring on a large scale, that iiNet were aware of these infringements and did not take any action to stop or deter these infringements.”

However, Justice Cowdroy did rule, effectively, that chasing copyright infringers isn’t an ISP’s job. Even if he had found that iiNet had “authorised” the infringing acts of its customers they would still, as a carriage service provider, have “safe harbour” under Division 2AA of Part V of the Copyright Act.

Yesterday AFACT chief executive Neil Gane said in a statement, “We are confident that the Government does not intend a policy outcome where rampant copyright infringement is allowed to continue unaddressed and unabated.”

Globally, the movie and music industry has in parallel been pursuing another strategy: persuading governments to introduce “three strikes and you’re off the internet” laws, requiring ISPs to act upon infringement notices such as AFACT’s.

New Zealand has re-introduced  such legislation for the second time. The first was overturned following public outcry over the law’s “guilt by allegation” stance. France has already passed revised law after the first version was ruled unconstitutional. And they’re not alone.

While there have been concerns that three-strikes laws were on the agenda at the secretive Anti-Counterfeiting Trade Agreement (ACTA) negotiations in Mexico, a spokesperson for the Department of Foreign Affairs and Trade has denied any such idea  was on the table.

Nevertheless, in March last year communications minister Senator Stephen Conroy derided iiNet’s defence as something that “belongs in a Yes Minister episode”. While Senator Conroy has so far only said that his office would examine the iiNet finding, can it be inferred that he would smile upon a three-strikes law?

Or is that too heady for an election year?

Disclosure: Stilgherrian is a customer of iiNet, as well as Telstra and Virgin Mobile. He has not communicated with iiNet about this case, nor they with him.

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Peter Fray
Peter Fray
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