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iiTrial in the High Court: Day One

Amicus curiae decisions, and the fine detail of authorisation

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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. ®

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