iiTrial: Appeal ends with studios seeking cooperation on piracy

Appeal day 4: Costs, damages and relief mentioned in closing.

An anti-piracy regime would cost both the film industry and ISPs money to implement, but compliance on the part of ISPs was not without benefit, representatives of Hollywood studios told the Federal Court yesterday.

In closing submissions, Australian Federation Against Copyright Theft (AFACT) lead barrister David Catterns QC said the film industry "accepted that our scheme involves cost" but he said the proposed scheme included the benefit of "compliance with Safe Harbour" provisions listed in Part V Division 2AA of the Copyright Act for the ISP.

"That's what our friends [iiNet] get out of that," Catterns QC said.

"On our side, leaving aside damages from infringement, we have to detect infringements and fix our friends with knowledge. There may be some to-ing and fro-ing, verifying and so on [that goes on].

"Cost is part of a complicated system".

Relief sought

Catterns QC said that, should AFACT win on appeal, it sought a "declaration that our friends [iiNet] authorised the primary infringement that they have admitted to."

He also said the studios would seek unspecified injunctions against iiNet, but stopped short of wanting iiNet to block certain websites as indicated in the original trial, accepting iiNet chief executive Michael Malone's assertions in evidence that such blocks could be "easily circumvented".

And Catterns QC said unspecified compensation would also be sought.

Catterns was highly critical of iiNet's submission that its Freezone of legal content was beneficial in the fight against piracy.

"The idea that someone at home... using BitTorrent is going to be crowded out because they are so busy cruising the freezone that they won't be offering to seed other people with the films they've already downloaded from BitTorrent doesn't go very far, we'd submit," he said.

"Of course you can watch TV and at the same time have your computer set to make films available online."

He was also critical of iiNet's move to send some AFACT notices via the Western Australian Police, labelling it "derisory to do that."

"Our learned clients are sophisticated people who are completely aware these are civil matters," Catterns QC said.

"Putting these things to the Police is merely [iiNet] thumbing their nose at us."

On one occasion, Catterns QC was forced to clarify that he wasn't introducing new arguments in closing.

"Was this in reply or are you having another go?" Justice Emmett had queried Catterns on a line of criticism.

iiNet's lead barrister Richard Cobden briefly attempted to address "two new matters ventilated" by the studios in closing submissions - including injunctive relief.

Justice Emmett said that if the full bench was to find in the studios favour, it was likely further arguments would need to be heard to determine relief or whether to send the case back to the primary judge, Justice Cowdroy.

The case was stood over for a fortnight.