The Australian Federation Against Copyright Theft (AFACT) has sought to downplay the relevance of section 202 of the Copyright Act in its ongoing battle with service provider iiNet.
Justice William Gummow yesterday raised the legal provision in the High Court as a potential new ground for concern for iiNet and other ISPs.
Section 202 stated that a person aggrieved by threats of legal action could apply to the courts to have the threat declared "unjustifiable, [gain] an injunction against the continuance of the threats, and ... recover damages".
Justice Gummow yesterday noted that the operation of s202 had to be taken into account if ISPs were forced to issue warning notices to their users to avoid breaching the Copyright Act’s authorisation provision.
Counsel for iiNet Richard Cobden SC said there was a real potential of an ISP falling foul of s202 as the company could be seen as the “threatener”, its customer the threatened party and that action would succeed, if threats over alleged infringement were unjustifiable.
But AFACT counsel Tony Bannon SC used his final statements today to dismiss s202 as a potential ground for attack against service providers or individual users.
The provision had never been raised in any of the previous Federal Court hearings between AFACT and iiNet.
Though Bannon conceded the provision was a possible issue, he argued there was no case law precedent for its application and a mere passing of a warning to users was unlikely to breach section 202.
It would also require a threat of court action against individual users by content owners, which they had so far been largely unwilling to do in Australia.
Instead, content owners hoped that by causing service providers to force take-down of infringing users and copyrighted material they might be sharing through BitTorrent, they could curb the spread of the material.
As well as the application of section 202, AFACT argued over remaining issues of cost and complexity of implementing a graduated response scheme, as well as the lack of an industry code between service providers and content owners in the final day of High Court hearings.
The court adjourned just before midday today but the full bench of judges reserved their judgment.
A full judgment is not expected for several months.
On costs, Bannon spent considerable time arguing that ISPs’ continued assertions that a warning scheme for infringing users was unreasonable, had not been defended with sufficient evidence.
He pointed to iiNet subsidiary Westnet as already having a system of forwarding notices. iiNet had failed to tender evidence on the costs and complexity of Westnet’s system to the court, he argued.
Bannon said iiNet had only made assertions about the difficulties and costs of introducing such a scheme.
In any event, he asserted that any attempt by iiNet to deter infringing users and provide legitimate access to content would be positive to the service provider’s bottom line, as it would reduce strain on the network from regular BitTorrent users.
“One can only infer that iiNet did not address this because it would have been unfavourable to [them],” Bannon said.
However, Justice Gummow noted that overseas regimes, such as in New Zealand, already provided a framework for rights holders to reimburse ISPs for forwarding notices.
Both parties were still at odds about the significance of a lack of industry code which would address the charge of authorisation in s101(1A) of the Copyright Act, which has dominated debate at each level of the legal battle.
Bannon argued that the law intended ISPs to draft such a code, which was still not present.
But iiNet counsel Richard Cobden SC countered that it had already provided evidence showing past attempts to propose such a code, particularly with the music industry.
Though not requiring statutory approval, any such code required the cooperation and agreement of the rights groups. The onus was not only with the ISPs, he said.
Five ISPs represented by the Communications Alliance last week also proposed a new industry code which would involve a warning notice and three subsequent educational notices to users, but did not condone termination of an infringing user’s internet connection.
Content industry groups have rejected the proposal to date.
As the court hearings wrapped up, Justice Susan Crennan characterised AFACT’s argument over authorisation as “very narrow”.
“It’s narrowness is its strength,” Bannon defended.
He said authorisation could only be undertaken by iiNet and its failure to respond to warning notices of infringement.
For up-to-the-minute coverage of the case from our reporter on the ground in Canberra, stay tuned to iTnews here.