iiTrial: University group plans to apply to intervene

The Australian Digital Alliance (ADA) says it will apply to the High Court as 'amicus curiae' (or 'friend of the court') should the losing party from the latest round of AFACT's court action against iiNet look to the High Court for a final appeal.

Amicus Curiae refers to an independent third party that applies to contribute information to a court case.

However, the information must be deemed new or different to that already contributed to the Court in order to be accepted.

The trial between ISP iiNet and the film industry, led by AFACT (the Australian Federation Against Copyright Theft) in the Federal Court, has already attracted similar applications from a multitude of organisations claiming to be of assistance.

Justice Cowdroy rejected an attempt by the Internet Industry Association (IIA) to participate as a friend of the court during the initial trial in November 2009, prior to iiNet winning a fairly comprehensive victory and AFACT filing an appeal, currently in session.

Various interest groups impacted by filesharing - such as the Screen Actors Guild, Australian Performing Rights Association (APRA) and the Media and Entertainment and Arts Alliance (MEAA)  -have attempted to appear Amicus Curiae during the appeal. None have yet taken the stand.

Post the current appeal before the full bench of the Federal Court, one last avenue can be exhausted - by either party - should it lose the case.

The losing party can apply for 'special leave' to appeal to the High Court. This 'special leave' must be granted by one of the Justices of the High Court, on very specific grounds.

One of the only grounds likely to apply to the iiNet vs AFACT battle would be if a High Court Justice determined that the case posed a question of law considered of wider public importance than to the specific parties involved in the case.

Matt Dawes, copyright advisor at the ADA, has confirmed that should this occur, the ADA plans to apply as 'amicus curae' ('friend of the court') to speak for the universities, libraries, museums and IT companies the group represents.

Dawes said he doubts the High Court would approve a challenge based on a relatively modern and fluid concept such as safe harbour protection, which provides legal protection to a service provider from the actions of their subscribers if certain provisions are met.

"The form that concept is in is locked in by Australia's Free Trade Agreement (FTA) with the United States," Dawes said. "The High Court would be reluctant to look at it."

But Dawes does feel the High Court might be willing to accept an appeal on the basis of the definition of 'authorisation' - a sticking point in the trial AFACT lodged against iiNet - which roughly speaks to whether the ISP has "authorised" copyright infringement by not preventing subscribers from infringing.

"The definition of 'authorisation' hasn't been addressed by the High Court since the 1975 Moorhouse case," Dawes said, alluding to a High Court case in which the University of New South Wales was found to have authorised the violation of copyright by providing photocopiers to students.

Any reference to Moorhouse or general change in the definition of 'authorisation' is of strong interest to Australia's universities.

"There have been problems with this definition over the past 35 years, and the High Court could potentially see a need to change the law to reflect that," Dawes said. "Authorisation is a rare issue and it could potentially be revisited.