iiTrial: Comms Alliance, APRA allowed to intervene

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.