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iiNet wins High Court trial

AFACT says decision exposes 'failure of copyright law'

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Updated Big Content has lost its appeal against the Federal Court's decision that iiNet did not infringe copyright when it ignored allegations of theft by its customers sent to it by the Australian Federation Against Copyright Theft (AFACT).

The judgement summary (PDF) offers two reasons for the decision.

The first is that “iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants' films. Rather, the extent of iiNet's power to prevent its customers from infringing the appellants' copyright was limited to an indirect power to terminate its contractual relationship with its customers.”

The second reason the court advanced is that “the information contained in the AFACT notices, as and when they were served, did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers' account”

That court therefore concluded that “... it could not be inferred from iiNet's inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the appellants' films by its customers.”

iiNet CEO Michael Malone tweeted that his company has won the case against it in Australia's High Court. More to come as details emerge, after earlier saying he was "waiting nervously" for the decision.

AFACT has issued a statement in which it says the decision "exposes the failure of copyright law to keep pace with the online environment ..."

AFACT Managing Director Neil Gane therefore called for legislative change. “Both judgements in this case recognise that copyright law is no longer equipped to deal with the rate of technological change we have seen since the law of authorisation was last tested. They both point to the need for legislation to protect copyright owners against P2P infringements,” Gane said.

“The Judges recognise the significant rate of copyright infringement online and point to the fact that over half the usage of iiNet’s internet service by its customers (measured by volume) was represented by Bit Torrent file sharing which was known to be used for infringing activities,” he said.   “Now that we have taken this issue to the highest court in the land, it is time for Government to act.

Gane also said that in the "three years since the case commenced, legislators, regulators and courts around the world have mandated that ISPs must play a central role in preventing online copyright theft. Fortunately, many ISPs have come to the conclusion that being involved in online copyright protection is in their commercial interests. ISPs are becoming increasingly dependent on monetising legal content and therefore protecting its value.” ®

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