iiNet looks to close gaps in AFACT judgement

Internet Service Provider iiNet is "highly likely" to serve a notice of contention with the Federal Court of Australia this week in an attempt to reduce any chance the film industry has of appealing to a higher court, according to sources.

iiNet, the subject of landmark legal action in the Federal Court by representatives of the global film industry, was overwhelmingly satisfied with the decision handed down by Justice Cowdroy in February.  

The court found that iiNet had not authorised its subscribers to download and share copyrighted material using BitTorrent.

But in the aftermath of the judgement, the film industry, represented by AFACT (the Australian Federation Against Copyright Theft) has appealed to the full bench of the Federal Court.

The ISP now intends to serve a notice of contention to contest what few aspects of the judgement didn't go its way, in order to block any opportunity AFACT has of appealing to the High Court of Australia should the full bench of the Federal Court again rule in favour of iiNet.

Should its Federal Court appeal fail, AFACT would need to seek "leave" (ie approval) to take its case to the High Court.

Whilst appealing a Federal Court decision requires little more than an application form, applicants for cases in the High Court need first to prove they have a reasonable chance of winning before being heard.

If amendments to the Cowdroy judgement sought by iiNet are approved in the full court appeal, it would substantially lesson AFACT's chances of a High Court appeal afterwards.

What's to complain about?

The film industry has appealed Justice Cowdroy on some 15 grounds - close to the entirety of the judgement - but iiNet would be concerned with very few.

There are, however, a few small holes in the judgement that the ISP would no doubt prefer plugged to save it facing any more court time.

One, for example, would be Justice Cowdroy's assertion that iiNet could not seek protection under Section 112E of the Copyright Act as a "carriage service provider".

Section 112E notes that  "a person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright."

Justice Cowdroy ruled that any such protection would be overruled if a Judge found that the said service provider had authorised copyright infringement, courtesy of a precedent set in the Cooper trial [2006]. As such, any protection under section 112E would be rendered "inapplicable" when authorisation is already found.

"The Court, while sympathetic to the problems highlighted by the respondent [iiNet] in regard to the judicial interpretation of s[ection] 112E, is prevented from interpreting s[ection] 112E differently. It is bound to follow the Full Court's interpretation," Cowdroy's judgement read [see paragraphs 574 and 575].

In the original iiNet vs AFACT trial, as noted, Cowdroy found that iiNet did not authorise copyright infringement, rendering 112E irrelevant in Cowdroy's view. 

Such a finding is ripe ground for iiNet to address in its "notice of contention" to protect itself and its peers from further appeal or litigation.

iiNet has until Thursday, March 18 at 4:30pm to lodge a notice of contention.