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Why the iiNet case matters

The iiNet case commenced in 2008, when the Australian Federation Against Copyright Theft (AFACT), a body that numbers Warner Brothers, 20th Century Fox, Universal, Walt Disney Pictures, Sony Pictures and Paramount among its members, commissioned a company to investigate iiNet users' online behaviour.

The investigation saw a customised BitTorrent client used to track behaviour and AFACT used the data gathered through this method to compile substantial dossiers describing alleged copyright infringement that it sent to iiNet every week for more than a year.

iiNet did nothing with these dossiers, but did suggest to AFACT that handing them to the Police sounded like a good idea.

AFACT eventually decided to initiate legal action, which it said was the only sensible thing to do given iiNet's intransigence.

That action was widely interpreted as bullying, as when the case reached Australia's Federal Court in 2009 iiNet was a junior telco. While it may have had nearly half a million subscribers, that was well short of the several million enjoyed by Australia's two dominant telcos, Optus and Telstra. The latter owns a third of Australia's sole pay television provider, making a legal battle with Hollywood commercial poison. The former also distributes content, even if it too is embroiled in copyright controversy.

The case was therefore assumed to be a case of deep-pocketed content players picking on someone without the ability to muscle up in a protracted legal battle, in the hope of scoring a precedent it could use elsewhere.

That tactic has now backfired three times, as iiNet won the original case and two AFACT-initiated appeals. The latest failure, in Australia's High Court, cannot be appealed.

AFACT is now painting the decision as proof Australia's Copyright Act needs revision, an idea the Court itself mentions in the judgement, which says “The history of the [Copyright] Act since 1968 shows that the Parliament is more responsive to pressures for change to accommodate new circumstances than in the past. Those pressures are best resolved by legislative processes rather than by any extreme exercise in statutory interpretation by judicial decisions.”

Big Content may get the precedent it wanted after all. ®

With Simon Sharwood

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