Revealed: Copyright ‘101' challenge to iiNet victory

Dissecting the film industry's appeal.

The film industry will challenge close to the entirety of Justice Cowdroy's judgement on its case against ISP iiNet, according to appeal documents lodged with the Federal Court.

But central to the appeal is an argument that the judge applied an incorrect test for whether iiNet "authorised" the copyright infringement of subscribers on its network.

AFACT will effectively argue that the judge failed to weigh statutory provisions in the Copyright Act against considerations of case law when determining an outcome on the issue of authorisation.

In the case, Cowdroy ruled that it was BitTorrent - not the provision of the internet - that was the means of infringement. But this ruling was made on the basis of case law in the first instance.

In four of the fifteen grounds for appeal, AFACT has argued that Cowdroy was obliged to consider provision 101 (1A) of the Copyright Act in determining authorisation, in addition to appropriate case law.

Legal experts previously told iTnews that Cowdroy approach was to look at the case law position and come to a view on authorisation before considering these provisions.

"The Court would find that the respondent did not authorise for the reasons discussed above [ie case law] regardless of its consideration of s 101(1A) of the Copyright Act," Cowdroy's judgement reads.

"Nevertheless, as s 101(1A) is phrased as considerations that ‘must' be considered, the Court is compelled to go into further consideration of the issue of authorisation pursuant to the considerations in s 101(1A)(a)-(c) of the Copyright Act."

Provision 101 (1A) says that in determining authorisation, a Judge must "take into account" three provisions - the extent of the person's power to prevent the doing of the infringement, the nature of the relationship between the infringer and (in this case) iiNet, and whether (iiNet) took any other reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

Among other points to be raised on appeal:

• AFACT would seek to overturn the ruling that iiNet had a repeat infringer policy that allowed it to claim safe harbour under the Copyright Act.
• The federation would challenge Justice Cowdroy over his reasons for rejecting evidence.
• It would raise further questions over what could be inferred from iiNet's choice of witnesses. The film industry had questioned in the trial why staff with more intimate technical knowledge of the iiNet network were not called on to give evidence.
• AFACT plans to again question the number of infringements, which was a contentious issue in the case.