iiTrial: Comms Alliance, APRA allowed to intervene

 

Copyright appeal begins.

The High Court today dismissed four of six applications for amicus curiae, or "friends of the court", as hearings between service provider iiNet and content owners began in Canberra.

Applications from ISP industry body the Communications Alliance and the Australian Performing Rights Association were allowed through by the full bench of five High Court judges.

The other four applications - submitted by the Australian Digital Alliance, the Australian Privacy Foundation, the Australian Recording Industry Association and a joint submission by the Media, Entertainment, Arts Alliance and Screen Actors Guild - were dismissed from the case.

Chief Justice Robert French said applications for amicus were decided on whether the parties had a direct interest in the outcome of the case or whether they had sufficient compelling arguments to put to the court.

Chief Justice French said that no submissions had sufficiently compelling direct interest but that APRA and the Comms Alliance did have some arguments that the High Court was willing to hear.

He warned the interveners not to duplicate arguments made by either side.

They would also be required to provide assistance on points of law and not submit new evidence during the appeal.

It is not clear when the interveners will be heard.

The decisions were made from the outset of the three-day appeal by the Australian Federation Against Copyright Theft, representing 34 film studios, against the February Federal Court decision.

The case is being heard by five of the usual seven High Court justices, including Chief Justice Robert French, Justice Susan Crennan, Justice Kenneth Hayne, Justice Susan Kiefel and Justice William Gummow, scheduled for retirement next year.

Authorisation out of the gates

The first of three days set aside for the appeal saw legal counsel for content owners immediately delve into issues of authorisation, highlighted by legal experts as a founding point for the issues raised by the case.

Lead barrister for AFACT Tony Bannon faced considerable questioning by the full bench of judges on whether iiNet had authorised the copyright infringement under section 101(1A) of the Copyright Act.

In particular, Justice Crennan asked whether the technology used by iiNet subscribers to infringe copyright was much more complex than that considered in the Moorhouse decision upon which both sides hope to base their arguments.

Moorhouse is a 1975 High Court decision which found the University of New South Wales had authorised infringement by photocopier users in a library.

Other judges asked whether AFACT was taking an unduly broad interpretation of that decision.

Judges also queried AFACT counsel on the extent iiNet could "prevent" infringements.

Justice Kiefel wondered what would prevent an infringer that had been warned or even disconnected from going to another ISP and continuing to infringe.

Bannon argued that the other ISP would be bound to take similar steps to assure they were not also open to a charge of breaching the Copyright Act.

He argued that iiNet declined to even take the first step of sending a warning notice to the alleged infringer.

He said, however, that the issue was that iiNet was given notice of infringement by account holders and had made clear it was not going to do anything until it received a court order.

"Would not the case be that the ISPs suffered copyright infringement and failed to respond?" Justice Hayne asked.

"Yes, we would agree," Bannon said. "There was sufficient suffering by the ISP that it would amount to authorisation."

"What would be your definition of suffering?" Justice Gummow asked.

"Countenance," Bannon replied, a reference to a legal test of authorisation.

"The way you are speaking is that ISPs have a clear role to prevent infringement," Justice Kiefel said.

"ISPs control the means of infringement. Where they get knowledge, can they say, 'We are not doing anything in response?' Can you say that is not contravening [laws]," Bannon said.

AFACT counsel also took the full bench through the technical details of the BitTorrent peer-to-peer file sharing software and its operations.

They focused on the extent to which BitTorrent and topics such as the BitTorrent tracker and client were similar to the Kazaa system for purposes of authorisation.

They also relied on evidence that ISP Exetel had forwarded notices to its users rather than evidence previously used on iiNet subsidiary Westnet.

AFACT argued there would be no difficulty or costs in sending warning notices to alleged infringers.

Arguments over Moorhouse by content owners are to resume on Wednesday afternoon.

Copyright © iTnews.com.au . All rights reserved.


iiTrial: Comms Alliance, APRA allowed to intervene
 
 
 
Top Stories
Myer CIO named retailer's new chief executive
Richard Umbers to lead data-driven retail strategy.
 
Empty terminals and mountains of data
Qantas CIO Luc Hennekens says no-one is safe from digital disruption.
 
BoQ takes $10m hit on Salesforce CRM
Regulatory hurdles end cloud pilot.
 
 
Sign up to receive iTnews email bulletins
   FOLLOW US...
Latest articles on BIT Latest Articles from BIT
Microsoft is offering Azure for Disaster Recovery to Australian SMBs
Feb 10, 2015
If you haven't talked to your IT provider about disaster recovery, it might be worth discussing ...
The 2015 Xero Roadshow is on: here are the locations and dates
Feb 6, 2015
The 2015 Xero Roadshow kicked off this week - see where you can attend at locations around ...
Microsoft Outlook is now on iPhone and iPad: why could this be useful?
Jan 30, 2015
Microsoft today released Office for Android and Outlook for iOS - complementing the other Office ...
Franchisees, here's something you should know about
Jan 23, 2015
You need to know the Code if you are a franchisee or franchisor as the penalties are significant.
Xero users rejoice! Quoting has finally arrived
Jan 23, 2015
It has taken years, but Xero has at last added integrated quoting to its online accounting software.
Latest Comments
Polls
Who do you trust most to protect your private data?







   |   View results
Your bank
  35%
 
Your insurance company
  5%
 
A technology company (Google, Facebook et al)
  9%
 
Your telco, ISP or utility
  8%
 
A retailer (Coles, Woolworths et al)
  4%
 
A Federal Government agency (ATO, Centrelink etc)
  18%
 
An Australian law enforcement agency (AFP, ASIO et al)
  15%
 
A State Government agency (Health dept, etc)
  7%
TOTAL VOTES: 4094

Vote
Do you support the abolition of the Office of the Information Commissioner?

   |   View results
I support shutting down the OAIC.
  26%
 
I DON'T support shutting the OAIC.
  74%
TOTAL VOTES: 1396

Vote