Feeds

iiTrial in the High Court: Day One

Amicus curiae decisions, and the fine detail of authorisation

New hybrid storage solutions

The Communications Alliance, which represents the telecommunications industry, and the Australian Performing Rights Association have both been given permission to intervene in the “iiTrial” High Court appeal.

In the appeal, Village Roadshow and others are seeking to overturn a Federal Court ruling that iiNet – and, by extension, other carriers and ISPs – does not authorise its users’ copyright infringement simply because it did not prevent that infringement.

In deciding to admit the Communications Alliance and APRA, the court also refused similar applications by the Australian Recording Industry Association, the Australian Digital Alliance, the Media Entertainment and Arts Alliance, and the Screen Actors’ Guild.

The Hollywood heavyweights are seeking to overturn the prior ruling by establishing that the prior two-to-one decision by the Federal Court was incorrect: essentially, they are arguing that iiNet was hostile to the actions demanded of it by AFACT (the Australian Federation Against Copyright Theft).

Most of the first day’s proceedings were taken up in the minutiae of “authorisation" as defined by the movie industry’s senior counsel, Tony Bannon. Today, (December 1) will see iiNet’s senior counsel Richard Cobden take centre-stage.

First Day’s Discussions

If readers have the patience, there is at least a small amount of amusement and even some instruction to be found in the transcript of yesterday’s proceedings, here.

Bannon conceded that the content industries want ISPs to stand as proxy for end users because it’s neither economical nor popular for an organization like AFACT to pursue individual users: “The costs of doing it would be unbelievably prohibitive and quite frankly what you would end up with in court is potentially a whole lot of account holders, often parents, who will say ‘I never knew, if only you had let me know’”, Bannon told the High Court judges.

Justice Hayne, however, noted during the afternoon that the issue stretches far beyond iiNet alone:

“It is the existence of the network of networks, namely the Net, which enables unauthorised sharing of copyright work. The prevention of it ultimately depends upon the individual choice of the user of the Net. You seek to achieve the result through the medium of the company that provides access of the user to the network, and the conundrum is the power that the ISP has, the steps that the ISP can take depend ultimately for their effect on the individual user’s choice, for all that the ISP can do is switch off.”

Meanwhile, Justice Gummow seemed (at least to El Reg) to implicitly endorse the view of “authorisation” expressed in the Federal Court’s decision, by stating that the appeal is seeking to expand the judicial view of authorisation:

“This new right will not work effectively unless we can catch the intermediary by, well on one view of it, is an expanded view of what authorisation requires,” the judge said to Bannon.

By the end of the day, it appears that the judges had settled on a description of what the studios want: a kind of “negative” authorisation: if ISPs don’t issue notices, and don’t then follow up notices with disconnection, this would amount to authorisation. This led to what may have been an uncomfortable exchange for the studios, late in the day:

Justice French – “Is enforcement an element necessary to negative authorisation? If iiNet sent to one of the addressees mentioned in the AFACT notice, having identified the customer, a notice saying ‘We neither sanction, countenance nor approve your downloading films in which copyright subsists without paying for them’ and that reflected its genuine position, is the fact that it does not follow up with enforcement relevant then to authorisation?”

Bannon – “Yes.”

Justice French – “Why is that? Is the notice a sham?”

The appeal continues today. ®

Security for virtualized datacentres

More from The Register

next story
Italy's High Court orders HP to refund punter for putting Windows on PC
Top beaks slam bundled OS as 'commercial policy of forced distribution'
Net neutrality protestors slam the brakes on their OWN websites
Sites link up to protest slow lanes by bogging down pages
Found inside ISIS terror chap's laptop: CELINE DION tunes
REPORT: Stash of terrorist material found in Syria Dell box
Uber alles-holes, claims lawsuit: Taxi biz sued by blind passengers
Sueball claims blind passengers ditched, guide dogs abused
Show us your Five-Eyes SECRETS says Privacy International
Refusal to disclose GCHQ canteen menus and prices triggers Euro Human Rights Court action
Heavy VPN users are probably pirates, says BBC
And ISPs should nab 'em on our behalf
prev story

Whitepapers

Secure remote control for conventional and virtual desktops
Balancing user privacy and privileged access, in accordance with compliance frameworks and legislation. Evaluating any potential remote control choice.
Intelligent flash storage arrays
Tegile Intelligent Storage Arrays with IntelliFlash helps IT boost storage utilization and effciency while delivering unmatched storage savings and performance.
Reg Reader Research: SaaS based Email and Office Productivity Tools
Read this Reg reader report which provides advice and guidance for SMBs towards the use of SaaS based email and Office productivity tools.
Security for virtualized datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.
Providing a secure and efficient Helpdesk
A single remote control platform for user support is be key to providing an efficient helpdesk. Retain full control over the way in which screen and keystroke data is transmitted.