Legal experts expect appeal in iiNet judgement

ISP lawyers speak about the ramifications.

Lawyers have predicted that the film industry would appeal its Federal Court loss to ISP iiNet - if only to press the case for Government intervention in the battle against piracy.

The lawyers from Australia’s top technology legal firms also praised Justice Dennis Cowdroy for a judgement that was wider than required by the case, including a ruling on whether iiNet's repeat infringer policy was enough to grant it safe harbour under the Copyright Act.

The legal term for this type of ruling is ‘obiter’, according to legal blogger Andrew Calvin.

“A decision didn’t need to be made in this particular case on this point, but it remains instructive,” Calvin noted.

Peter Moon, partner of telecommunications and IT at Logie-Smith Lanyon, agreed the extra rulings “would be very influential” to future copyright cases. But he said that judges weren’t obliged to follow them as they were “not part of the [official] ruling”.

But the widened scope could provide the film industry grounds for an appeal.

“I think the judge has taken a bold point of view,” Moon said.

“He’s basically said that he’s not going to shirk the opportunity to say some things. He’s done a good thing getting the issues out there and going beyond [what he] strictly had to do.

“[But] there could be problems with the judgement and appeal points.”

An appeal would likely be over points of law rather than fact, said Erhan Karabardak, a director of Cooper Mills Lawyers.

“There’s a lot at stake for the movie industry and I suspect they will probably appeal. But of course appeals are generally on the basis of points of law, not fact,” Karabardak said.

“If you don’t like what a judge has said on a matter of fact, it’s typically not appealed.”

Moon said judges who wanted to prevent an appeal usually did so by making “very strong findings on disputed facts”. But he said there were “very few disputed facts in this case”.

Other lawyers iTnews spoke to said in some cases, judgements were “written for an appeal court” but there was no indication that the iiNet judgement was written up in this way.

“I’m not sure there’s anything [Justice Cowdroy] can do to protect his judgement against appeal,” Moon said.

“I think what he has done is taken the risk of being upset at appeal. He has not shied away from expressing a clear and firm view. He has said to an appeal court ‘If I’m wrong, I’m very wrong’. In a case like this that’s very helpful.”

But Moon said that “if an appeal courts wants to do damage to [the ruling], it will knock over the whole judgement”.

Appeal likely

Moon believed part of the reason the film industry would appeal was because the cost of doing so was a fraction of what it spent on the trial.

“There’s very little financial disincentive for the film industry not to have a shot at it - but I think the judgement will probably stand,” he said.

More importantly, he said an appeal was “extremely likely” because the film industry would need to prove it had exhausted available legal remedies before it appealed to the Federal Government seeking laws to block copyright infringement.

“But win, lose or draw today or on appeal, I reckon iiNet absolutely deserved their day in the sun. They fought a very potent and well prepared adversary,” Moon said.

Like Moon, lawyer Brendan Scott said the outcome of an appeal would “not be favourable” to the film industry.

“It will come, of course, because it is always worth it for rentiers to waste the public’s resources squeezing for every last inch, because every inch means many times more money that they can squeeze from the public,” he said in a blog post.

He defined a rentier as a holder of statutory exclusive rights.

Government intervention

Freehills technology partner Tony Joyner said it was "back to the drawing board" for the film industry.

"And you know what their first port of call will be? To call Senator Conroy and ask him to change the law," he said.

"The consequence of this decision is that the Government will have to change the law."

The film studios, the Government and even iiNet chief executive officer Michael Malone acknowledge that "rampant" file sharing is a problem, Joyner said. For clarity, he expected that even the ISPs wouldn't mind if the Government fixed the problem through legislation.

He said Conroy will be expected to legislate to create a system that was able to establish that if a person was breaking the law by downloading content illicitly, it was "recognised by a legal authority" that the ISP would be able to terminate the customer's account.

"There needs to be consequences for illegal file sharing - whether it be your termination being connected or being fined," he said.