Plunder downunder: How to read the iiTrial piracy verdict

 
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While an industry- or government-led solution might be some time away, the film studios face a more pressing problem.

The High Court has effectively disabled the practice of copyright owners sending reams of notices to ISPs that detail alleged cases of infringement.

"I think they've really shot these types of notices between the eyes," Griffith Hack's Wayne Condon says.

"In a practical sense I think [the High Court] might have sounded the death knell of this approach of providing notices to ISPs of allegedly infringing conduct with a view to giving rise to a responsibility or obligation for the ISP to take action based upon [those notices]."

The full bench of the Federal Court provided a prescriptive set of conditions under which the studios might improve the notices to the point where ISPs were obliged to action them.

The High Court, however has reset that bar almost impossibly high.

It noted that the information in AFACT's notices "did not approximate the evidence which would be expected to be filed in civil proceedings in which interlocutory relief was sought by a copyright owner in respect of an allegation of copyright infringement".

The inference is clear - the studios must produce notices to a court's evidentiary standards for the notices to even be considered legitimate enough to be acted upon.

"That's a pretty significant amount of evidence, proof, documentation," Baker & McKenzie's Adrian Lawrence says.

"What [the High Court] seems to be saying is, 'Look, to make the circumstances reasonable for iiNet to get involved here, you would have to have proof ... as if you were running up to court to get an interlocutory injunction', which is well beyond what you would normally expect in a standard copyright letter of demand."

Even if the studios produced interlocutory-standard copyright notices, it's far from a certainty that they'd compel an accused ISP to act.

"I think there's a question in the case - and the judges don't really give us the answer to this and they would say they don't need to to make this judgment - I think there's a feeling at least that even then, that might not be enough," Lawrence says.

King & Wood Mallesons partner Maurice Gonsalves concurs. "Even if the notices had provided all the evidence in the world it's still not going to mean the ISP has an obligation to take action."

Cooper Mills' Peter Moon says the studios have been "left high and dry".

"[The High Court's] basically said that in an environment of changing technology it's up to parliament to figure out the answers to these things," he says.

"I am very glad I am not responsible for figuring out government policy on copyright issues in 2012 in Australia."

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