Plunder downunder: How to read the iiTrial piracy verdict

 
Page 3 of 3 | Single page

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."

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


Plunder downunder: How to read the iiTrial piracy verdict
 
 
 
Top Stories
IBM, NEC picked for major NSW Transport deals
Final contract negotiations begin.
 
Govt proposes crackdown on ISPs over piracy
Wants new legal powers for copyright industry.
 
Westpac interim CIO resigns
Group CIO yet to be appointed.
 
 
Sign up to receive iTnews email bulletins
   FOLLOW US...
Latest articles on BIT Latest Articles from BIT
Pass on carbon tax savings, warns ACCC
Jul 24, 2014
The ACCC is warning businesses that supply "regulated goods" to pass on any cost savings ...
Have customers that won't pay debts?
Jul 10, 2014
The ACCC and ASIC have updated their advice when it comes to collecting debts.
Carpet cleaner faces court over online testimonials
Jul 4, 2014
The ACCC has initiated proceedings against A Whistle (1979) Pty Ltd, the franchisor of Electrodry...
You can now get 15GB of free online storage using Microsoft OneDrive
Jun 25, 2014
Cloud storage has reached both the capacity and price where it's a viable alternative to local ...
Another clever trick you can perform with Xero
Jun 25, 2014
Here is another way to reach out to particular subsets of your customers using Xero.
Latest Comments
Polls
What is delaying adoption of public cloud in your organisation?







   |   View results
Lock-in concerns
  30%
 
Application integration concerns
  3%
 
Security and compliance concerns
  27%
 
Unreliable network infrastructure
  9%
 
Data sovereignty concerns
  21%
 
Lack of stakeholder support
  3%
 
Protecting on-premise IT jobs
  4%
 
Difficulty transitioning CapEx budget into OpEx
  3%
TOTAL VOTES: 1000

Vote