AFACT v iiNet: Judge tipped to examine France, Britain copyright law

AFACT v iiNet: Judge tipped to look at recent overseas court decisions, including many that favour anti-piracy campaigners

The judge overseeing a civil trial between the Australian Federation Against Copyright Theft (AFACT) and ISP, iiNet, will likely consider rulings by foreign courts, including many favouring anti-piracy campaigners, in making a decision in the landmark case.

In recent months, Bit Torrent websites accused of facilitating access to copyright-protected material have been shutdown and annexed by federal courts around the world following a spate of successful court actions led by copyright activists, while national governments are thrashing out new laws and amendments to persecute service providers and users accused of harbouring or illegally accessing copyright material.

iLaw director Andrew Chelvathurai said Justice Cowdrey, who is overseeing the trial, will consider the outcomes of legal action in copyright cases in countries such as France and Britain.

“The court could take the argument, say official legislation from Great Britain, to examine the reason why they have enacted a law to counter some loophole, etcetera,” Chelvathurai said.

“Australia will look at overseas law as an argument to say why we should implement amendments to our law, or interpret our law according to a specific principle.

“But International law still fails to take action and sanctions against those who [upload copyright material] from another country.”

AFACT has alleged iiNet failed to stop its subscribers from downloading and distributing copyright material over its networks. In the case held in the Federal Court in Sydney late last year, the court heard the film studios had authorised AFACT or one of its representatives to become an iiNet customer and to download the studio's copyrighted files. AFACT denied authorisation was given.

The ISP claimed it is legally unable to act as “judge and jury” by disconnecting customers, and that as such their only recourse is to refer cases of possible infringement to other authorities, and further argued it lacks the technical capabilities to block access to websites that facilitate the distribution of copyrighted material. Some of the legal issues at stake and the tactics employed by AFACT have their origins in a landmark copyright case involving the University of NSW library in 1975.

University of Melbourne Associate Professor David Brennan previously told Computerworld the outcome of the trial will re-write copyright law in Australia, regardless of the outcome.

"My view of this is that whichever side wins, ultimately it will be a trigger for law reform. If iiNet is found liable there will probably be some reform to manage that liability," Brennan said.

"When the university was found liable in the library case immediately after that there was a reform to the Act in section 39A. If they are not found liable I think there will also need to be reform to the Act.”

The French Constitutional Council last October passed the controversial Hadopi (High Authority for the Diffusion and Protection of Internet Creations) law, created by the country’s federal government, which allows the Internet connections of individuals to be revoked if they are accused of copyright violations following judicial review. Britian’s House of Lords is currently debating amendments to its Digital Economy Bill which this week saw several amendments that may impose harsh penalties on individuals and organisations that violate copyright law. One such amendment would see a cash value placed on individual infringements – such as a single album track – at the time ISPs are notified of a subscriber breach, while another proposal would see account holders responsible for all infringements originating from their IP address.

“Creating the laws is one thing, enforcement is another,” Chelvathurai said, speaking of the likeliness that such charges would stick as courts would have difficulty to determine if a wireless network was hacked.

A ruling by Italy's highest appeal court in September last year saw a nation-wide ban on access to notorious bit torrent site The Pirate Bay, following an overturn of a previous decision that unblocked access to the site, on the grounds that the laws invoked applied only to child pornography and unauthorized gambling.

The decision was made despite the website’s immaterial nature, with the court deciding the The Pirate Bay was not a neutral instrument of peer-to-peer communication because it assisted clients in their copyright violations by providing an index of content and a search engine.

A similarcourt action in Norway was thrown out last year after the International Federation of the Phonographic Industry (IFPI) threatened the country’s biggest ISP, Telenor, with legal action unless it blocked access to The Pirate Bay. The ISP refused, and the district court agreed that there is no legal basis for any ISP to act in the interests of copyright holders by blocking websites.

A Danish court ruling saw the once infamous bit torrent site Mininova turn clean, after it was forced to remove all copyright infringing material from its Web site.

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