Film industry appeals in iiTrial case

By Brett Winterford on Feb 25, 2010 10:56 AM
Filed under Telco/ISP

On 15 grounds.

AFACT has lodged a last minute appeal against a Federal Court judgement earlier this month which exonerated ISP iiNet for the copyright infringing activities of its subscribers.

For the latest on the appeal grounds, click here.

The Australian Federation Against Copyright Theft, representing 34 of the world's largest film companies, filed an appeal in the Federal Court today on 15 grounds.

The legal community had anticipated that AFACT would appeal, if only to exhaust all potential avenues before calling for the Federal Government to intervene.

In a statement today, AFACT said the judgement "left an unworkable online environment for content creators and content providers" and "represents a serious threat to Australia's digital economy."

AFACT Executive Director Neil Gane said the judgement was "out of step" with established copyright law.

"The court found large scale copyright infringements, that iiNet knew they were occurring, that iiNet had the contractual and technical capacity to stop them and iiNet did nothing about them," he said.

Gane said that previous case law (such as Cooper and Kazaa) suggested iiNet's failure to act should have amounted to "authorisation" of copyright infringement - a notion that was rejected by Justice Cowdroy in his ruling.

Gane said the decision had rendered Safe Harbour provisions irrelevant.

"This decision allows iiNet to pay lip service to provisions that were designed to encourage ISPs to prevent copyright infringements in return for the safety the law provided," he said. "If this decision stands, the ISPs have all the protection without any of the responsibility.

"By allowing internet companies like iiNet to turn a blind eye to copyright theft, the decision harms not just the studios that produce and distribute movies, it but also Australia's creative community and all those whose livelihoods depend on a vibrant entertainment industry."

iiNet "disappointed"

iiNet chief executive Michael Malone released a statement today saying that it was "more than disappointing and frustrating that the studios have chosen this unproductive path."

Malone again pressed the film industry to drop its litigation and talk to ISPs about finding better commercial models for its content.

"This legal case has not stopped one illegal download and further legal appeals will not stop piracy," he said.

Malone said services like Hulu or iiNet's content freezone represent the only effective means of combating online piracy.

"We stand ready to work with the film and television industry to develop, implement and promote these new approaches and models," he said. "We are ready to champion them in partnership with the studios, but court proceedings and more legal challenges only serve to delay this and in the meantime more copyright material will be stolen."

More to follow...

You can follow the case in-full here. For a background on the case, click here.

18 comments in this discussion

"Question to SevenV: Who are you and how did you come to the conclusions that the rights of any body have been violated. Just because some body is rich and has access to lawyers it can go accusing ..."

By mahafakir

Tags

afact, iinet, iitrial, appeal, film, piracy, isp, safe harbor

Bottled water case study for content makers: iiNet

Film studios survey targets ISP piracy responsibility

Plunder downunder: How to read the iiTrial piracy verdict

Breaking Stories

Freedom Cable yanks Australia from subsea rollout

Optus kicks off TD-LTE network

Syrian hackers compromise FT website

Linfox crunches big data to keep trucks on time

Decoding NetSuite's anti-SAP bravado

Comments: 18

Rhino Feb 25, 2010 12:07 PM	Correct me if I'm wrong, but Cooper and Kazaa wouldn't be a good case to refer to as Kazaa was software which could have been used on any ISP, just the same as Bittorrent, Vuse, uTorrent etc etc. The judge made it clear that an ISP cannot be accountable for a software application it did not develop, or provide for use.
techydude Feb 25, 2010 12:46 PM	great, now we have to watch this stupid old dog chase its tail for another 6+ months... yes Rhino, all AFACT/et.al. can do is vomit irrational hot air.
Bourkie Feb 25, 2010 2:09 PM	Ding ding... round two! I can't wait for round three in the High Court, those judges are the most entertaining =)
Graeme Harrison (prof at-symbol post.harvard.edu) Feb 25, 2010 2:39 PM	Talk about failing to get a message. Justice Cowdroy's statement that AFACT chose the wrong party to attack was as clear as it gets. AFACT will again fail in trying to force iiNet to disconnect. The most they should have been seeking was to demand that iiNet provide customer details of clearly-violating consumers to the Police, so iiNet could allege breach of the law by the violators, as iiNet never violated anyone's copyright.... and in this country you can't insist that another enforces a private right you might have against a third party.
somme1 Feb 25, 2010 2:59 PM	Haha.. I for one am glad they appealed. Not because I support AFACT, but rather because I'd like to see them waste as much money as possible. They really don't have much of a grasp on reality, and I suspect their legal counsel are beside themselves at being given the opportunity to separate another big stack of cash from these creatively challenged (let's face it AFACT don't actually create anything, just leach of others who do) [edited for abusive language]. Sorry I just realised that AFACT (and their members) do create something... lies and baseless rhetoric (but that is the limit of their creativity). Edited by BrettWinterford: 26/2/2010 09:31:11 AM
hellfire Feb 25, 2010 4:17 PM	AFACT could better spend it's time and money suing Bit Torrent as this a the program used to download movies from the Net. However this program has other uses also that are ligitimate. The fact remains that under law it is the owner of copyrighted material who is responsible to police copyright not a third party such as an ISP who merely provides access to the internet. The decision right from the start was obvious and AFACT will only waste more of their clients funds by an appeal and further alienate itself and it's members from the wider community who do not support or agree to what AFACT is doing. If instead they worked with ISP's to provide their movies for download at a small fee there would be no problem with piracy.
Tailgator Feb 25, 2010 4:24 PM	AFACT said the judgement "left an unworkable online environment for content creators and content providers" and "represents a serious threat to Australia's digital economy." The law is the law. Just because it does not coincide with AFACT's perception of what is just or preferable, does not validate cause for appeal. You lost AFACT. Build a bridge or find another way to work within the system. As for 'threat to Aust's digital economy', ROFLMAO.
bcmobile Feb 25, 2010 4:27 PM	The problem with this case is that if (when?) the Supreme Court reject AFACT again, the ISPs last line of defence is douchebag Conroy. If I were Malone, Id get myself a pimped out Chalet in some exclusive ski resort and send Conroy an invite before AFACT do.
KarL Feb 25, 2010 4:45 PM	There are usually three areas of download which gets lumped together. 1. New movie releases that got filmed in a third world cinema. They can't control that in these countries. So they think legal actions in Australia can do something. 2. DVD releases got ripped. This is the so called speculative income they think they can get. If people were not interested in watching in cinemas, they are usually at the border line anyway. They can wait to rent or borrow in video store. 3. Out of sale movies. Movies > 3 years old that has been shown on TV that was capture and posted. Each of these should be dealt with differently. So suing an ISP makes them look like fools. This is a blanket legal precedence they wish to set. There are also weird ones like Japanese Anime fansubs that is never available outside Japan and the TV broadcasters would not show them because there are no potential advertising incomes. Or foreign movies (Bollywood, Hong Kong shows) that only migrants would be interested in. These may be outside AFACT's interests. So barking at a wrong tree....
SvenV Feb 25, 2010 4:57 PM	Re: "copyright theft" I think it's atrocious that the film industry's copyrights have been stolen. The thieves should be forced to give them back immediately!
FrankJackson Feb 25, 2010 5:08 PM	I think AFACT just need to go do a basic course which covers TCP/IP. They might actually realise that a single IP is not always a single User. This means that a house with 10 people will have 1 IP to share ... an ISP cannot just deactivate an account of a account holder because it was holding an infringing IP at the time it was found downloading copyrighted material. Even if iiNet were brave enough to deactivate a user's account they would sit with the burden of proving that it was the actual account holder that broke the law - which it may not have been. The account holder may actually have a legal leg to take action against his ISP for unfair termination (via TIO). The law ultimately may state that an account holder is responsible for what traffic passes across his line, but that would mean a "hacked dentist in Brisbane" - unknowingly - serving up kiddy porn may have been in jail now for distribution of child pornography. AFACT. If you need a course in how the internet thing actually works, give me a call.
Digger11 Feb 25, 2010 5:08 PM	APPEAL !!! This puts me in the same league as Pauline Hanson who was referred to recently as a "relative of Nostradamus" in relation to her comment over 13 years ago in her opening speech to Parliament. "I believe we are in danger of being swamped by Asians"
admac57 Feb 25, 2010 5:55 PM	After reading the judgement I agree with the court conclusions but I am curious as to why the applicants did not raise section 313 of the Telco act as part of their ammunition. Section 313 provides as follows: Obligations of carriers and carriage service providers (1) A carrier or carriage service provider must, in connection with: (a) the operation by the carrier or provider of telecommunications networks or facilities; or (b) the supply by the carrier or provider of carriage services; do the carrier's best or the provider's best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories. The flagrant breach of copyright is an offence under the copyright Act. Just a preliminary thought. The term "prevent" is quite an obligation. The only case that I am aware of dealing with section 313 (actually its predecessor in legislation) is Kendal v, TELSTRA. Unfortunately an unispiring case in its rational.
btone Feb 25, 2010 6:55 PM	@Digger11 This puts me in the same league as Pauline Hanson who was referred to recently as a "relative of Nostradamus" No, it puts you in the same league as every legal expert who has commented on the case. The fatboys have nothing to lose so they will spend relatively little to try and reswill their troughs. You have however placed yourself in eminently suitable company...ever thought of shooting through to the UK, a certain dodgy 'Lord' over there would just love your support. The big problem here is that another few months and another case after that gives the snowboarder from hell a chance to bed down a cosy deal with the piggies in the faint chance that he is still a minister after the next election.
ITrant Feb 25, 2010 8:44 PM	The initial judgement was moral victory only. The Government has already shown their hand here. Conroy attempted to demolish iiNet's defence during the trial. http://www.itnews.com.au/News/141300,conroy-uses-iinet-case-to-sidestep-net-filter-issue.aspx The Government will legislate whatever AFACT asks, reason, privacy, responsibility, legality, be-damned.
ziggyzap Feb 28, 2010 6:33 AM	The whole AFACT case was flawed. What AFACT tried to do was to blame a third party for the crimes of a first party. Would Telstra be held responsible for somebody making bomb threats by phone, because Telstra owned the copper line and infrastructure? Would Australia Post be held responsible for somebody kidnapping a child and sending a ransom note by mail? Would the RTA be held responsible for bank robbers using the roads to make their escape after a heist? Of course not. Telstra, Australia Post, RTA and ISPs are merely service providers. They are NOT responsible for the actions of others. It is the same with makers of Bit-Torrent and other P2P software. They are not responsible for people using that software for illegal means, no different than Ford and Holden not being responsible for robberies committed using those vehicles. If AFACT wants to prosecute somebody for copyright theft, then it needs to locate those who commit the offences and drag them to court. ISPs have nothing to do with the behaviour of their clients. I hope that if AFACT appealse, that it will lose badly and be forced to pay zillions in costs. It might teach them a lesson.
mahafakir Mar 10, 2010 5:00 AM	The movie Industry is suing any body and every body of copyright infringement. Its members are the ones that are stealing content and names and terms and anything and every thing it can make money from The producers of the Movie Avatar is an example. Avatar has made over a billion dollars in two months since it was released and may well make over a trillion dollars before people cool down. Yet Its producers know it that the character whom it calls Avatar is misnamed. He is not an Avatar. Hindus created the term Avatar because of the concept on which the religion is based. The concept is that Souls do not die. They only loose a body and acquire an new body by a rebirth. That is not what happened to the character the movie calls Avatar. It just masquerades another person and has transformed his looks. Hindus would call him A Bhainse. But Bhainse is not as glamorous and as well known as the word Avatar and inspite of the spectacular effects Bhainse would not be watched as widely as Avatar is being watched. I would want the help of all those whom the Movie industry is suing in bring it to its knees. I want a lawyer who would want to seek name and fame and fortune by becoming more universally known than God himself to seek an injunction against the producers of the movie Avatar from screening the movie anywhere until they change the name of the movie and stop using the word Avatar. I'm mahafakir and can be reached by email at aol.com
mahafakir Mar 10, 2010 5:15 AM	Question to SevenV: Who are you and how did you come to the conclusions that the rights of any body have been violated. Just because some body is rich and has access to lawyers it can go accusing any body and every body of anything. The movie industry must be stopped. I am one person who does not have money to hire an attorney to stop the Movie Industry from Violating the rights of people. Right of people to download from Internet. That is why the internet was created. Instead of acting to amend the internet so that things can't be downloaded they are taking the cheaper route. Sur people of Copyright violation. Hit them in their pockets. That is hitting them below the belt. I have never downloaded any thing. I do not want to sue the movie industry for my right to download. I want to sue just a member of Movie Industry. I'm Hindu. My forefathers discovered that souls do not die. They merely change their bodies through rebirth. This Cameron comes and creates a character and calls it Avatar. This character is not whom my forefathers called Avatar. They called him Bhainse (disguise). That is what the character in the movie Avatar is. I want legal help in seeking an injunction against the producers of the movie. The lawyer will get untold fame and fortune in bringing the movie industry to its knees.