Industry weighs in on iiNet court case

The Internet Industry Association plans to make an application on behalf of 140 organisations to intervene as an amicus curiae ('friend of the court') in the case being made by the film industry against ISP iiNet.

The IIA, represented by Steven Finch of renowned legal firm Clayton Utz, sent a letter to both parties on Friday stating its intention to intervene in the case.

Being amicus curiae would allow the judge presiding over the case to call on the industry association for expert opinion.

The Australian Federation Against Copyright Theft (AFACT), led by Roadshow Entertainment, began the case in the Federal Court against the Perth-based ISP late last year, claiming iiNet did not do enough to prevent its broadband subscribers from the illegal sharing of copyright-protected works. The ISP has argued that it does not have the legal right to intercept the communications of its subscribers.

Today in the Federal Court, counsel representing Roadshow Films/AFACT dismissed IIA's intentions to intervene.

"We'll be opposing any applications for intervention by the IIA," said Christian Dimitriadis, counsel for AFACT.

Firstly, Dimitriadis said, the film industry is concerned that the intervention might impact the "orderly conduct of the hearing".

Secondly, it was argued that the IIA could not fall within the definition of amicus curiae.

"We are concerned about the position of the IIA," Dimitriadis said. "This is a representative body which represents internet service providers, of which the respondent [iiNet] is a member."

Dimitriadis argued that the IIA could not be considered a "bystander in an independent position."

He said past cases have left a clear distinction between what defines a "public interest body" as opposed to a "representative body." AFACT considers that IIA would "fall into the latter category."

Dimitriadis also argued that the industry association has "been assisting iiNet in this case", an argument that Richard Cobden, acting for iiNet, rejected. Dimitriadis said such an assertion could be proven by studying "documents submitted as evidence in this case" should IIA's application to intervene be approved by the court.

Thirdly, the counsel for AFACT said that an amicus curiae party should only be required when parties in the case are not able to provide assistance. "There is no suggestion iiNet is not adequately represented in this case," he said.

Finally, AFACT argued that IIA's input should only be considered "until after the close of evidence in the hearing."

This input, AFACT argued, "ought to be confined to the filing of written correspondence". The IIA "should not have the right to an appearance" beyond sitting in the public gallery, he said.

It is understood by iTnews that the IIA has no desire to examine witnesses or submit affadavits, or indeed act in any way beyond the submitting of written statements.

Cobden said the industry association's interest in the case is a "serious application by a serious body", represented by a reputable law firm.

He said the court should "give Mr Finch a chance to say what they have to say."

Justice Cowdroy said he was not yet sure "what purpose would be served" by IIA's application, but did not rule out the IIA's involvement.