AFACT v iiNet: Film studios seeking to recoup costs
- 22 February, 2010 09:34
- Comments 37
The Australian Federation Against Copyright Theft (AFACT) will take Perth-based Internet Service Provider (ISP) iiNet back to court this Thursday to recoup costs from a copyright infringement case it lost against the ISP.
AFACT will use a directions hearing to try to recoup court costs in sections of the case which were upheld by presiding judge Justice Cowdroy, and will also claim for expenditure during what the group says were delays by iiNet in admitting the presence of copyright infringements on its network.
Earlier this month Justice Cowdroy found that despite findings of copyright infringement by iiNet customers, the ISP did not authorise the acts of its customers and subsequently threw the case out.
The ruling came after film companies including Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises and the Seven Network, the Australian licensee of some of the infringed works, filed a legal action against iiNet in November 2008.
They commenced action against iiNet following a five-month investigation that uncovered instances of copyright infringements by users of iiNet’s services.
However an AFACT spokeswoman said the group has not lodged an appeal yet and is unaware of any plans to do so. The organisation has until 25 February to do so.
“AFACT put in application for costs to be re-heard and it asks for costs to be adjusted for the parts of the matter that iiNet lost,” the spokeswoman said.
Melbourne University associate professor, David Brennan, said an appeal was likely and interested parties are "probably looking at 2011 or 2012 before a final judicial determination".
"I think it is wrong to see this as the be all and end all," Brennan told Computerworld after the trial decision.
"This is simply the opening battle or the first chapter in the legal story. It will, I think, have to play out all the way to the High Court and I wouldn't be surprised if the High Court granted leave either way the decision goes in the full Federal Court. I think the dissatisfied party would seek leave to the High Court after the full Federal Court decision and there is some degree of likelihood the High Court would grant that."
Both parties have suffered considerable financial expense to date in pursing the case and AFACT was ordered to pay iiNet's costs to the tune of $4 million. It is another reason AFACT will likely seek an appeal, Brennan argued.
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Comments
Peter
The fact that they lost a case which they should never have won which not only cost themselves a lot of wasted money but iiNets as well and they want iinet to pay?? For real?? They lost!! Game over. Take your bat and ball and bugger off. The nerve of these evil corporate monkeys is just mind blowing. They loose and yet they don't want to pay. I'll take the same approach next time I want a cd or dvd. Easy
Bob
What? (@ Article, not the first comment)
Ailie
Has April Fool's come early? Nope, it's just more corporate greed gone mad. I hope this gets thrown out as well, and better yet, I hope iiNet countersues for all it's costs in this and the original case. Now that would be fair.
Ben
So if I understand this right, even though they've been ordered to pay iiNets legal costs, they are seeking the court to order iiNet to pay their legal costs for the specific points they proved in court (namely that iiNets customers had in fact infringed on their copyright)?
Considering these points are inconsequential to the result of the case, the cost of pursing this line will probably be more than the amount they are trying to avoid.
James k
AFACT members include: Village Roadshow Limited; Motion Picture Association: Walt Disney Studios Motion Pictures Australia; Paramount Pictures Australia; Sony Pictures Releasing International Corporation; Twentieth Century Fox International; Universal International Films, Inc.; and Warner Bros. Pictures International, a division of Warner Bros. Pictures Inc.
With AFACT continually trying to link people downloading movies and tv shows for free with ridiclous claims of terrorism and links to other criminal activity, they can get stuffed. Using this spin to get government to make policy is crazy and only shows how greedy and corrupt they are.
Time to think about who is funding these loonies and how to minimise that funding, boycott the above companies, never pay a cent to them again.
Ah FACT off
Another reason why I don't buy DVD's. The corporations that sell them are greedy. And to the Seven Network, the only times I watch your shows is when I download them on BT. HAHA. Sue me.
Chris
Hey they did not waste money! They helped keep in employment lots of legal people which we apparently cannot do without. It is generating employment!!
Justin
The Film Fat Cats deserve to have their massive profits cut down to size. I mean who do they think they are?
And it shouldn't stop there, what about the big department stores? They cant expect us to pay those ridiculous markups. Only people over 40 should actually have to pay for stuff. I say bring back the 5 fingered discount.
Andrew
I have to agree with post #2, WHAT???!?!!?!
I can understand going back to court regarding differences in opinion about prices/amounts (though generally a lawer keeps tight tabs on costs and it does not need to go back to court).
But this? being told to pay expences (as is normal for a loosing side, done partially to reduce time wasting cases) does not mean the bill gets "reduced due to winning a 'point' " in the case.
Personally, I am not a lawer, this case is on thiner ice than the first. Just need to ge before a judge (no jury), get told to "grow up", get given the bill again for the two court vists, and slaped with a fine for the wasted time.
Rob
No doubt the AFACTs' tame monkey, Conroy, will side with them and declare that iinet should pay up for some of the court costs involved.
I wonder, if you were to loose a court case to AFACT, whether you could do the same thing to them? I'm guessing not.
Should we honestly be suprised by anything Conroy does anymore?
IVI
Australia's Commonwealth Gov't owes it to the People of Australia to IMMEDIATELY enact legislation to give ISPs the same "Common Carrier" protection that telco's (including de facto monopoly Telstra) have enjoyed & used to their advantage for YEARS.
...BOTH to reduce unnecessary costs on the part of smaller ISPs
AND to focus responsibility for the allegedly unlawful acts on their perpetrators, not the ISP [, computer suppliers, power utilties, et al.] who helped make the acts possible.
A (Big Content) vs (little ISP) case consumes WAY too much of our courts' limited time, and this impacts the time available for MORE IMPORTANT cases, which, eg, might affect our safety in the streets.
We DON'T need a country whose laws enable lawyers (on BOTH sides) to drain the pockets of our smaller ISPs, who have enough work for themselves, eg, competing with the likes of ex-Gov't-owned Telstra.
What we need is a set of CONSISTENT Comms Laws, based on the Practical Wisdom, that:
"ISPs the telco's of today, and deserve the same protections that our telco's enjoy to this day."
(Next time someone uses the telephone to defraud you, see how far you'd get, eg, by suing your phone company for making it possible for that to happen.)
IVI
The ONLY excuse Australia's Commonwealth Gov't might have, ie, for NOT extending the same legal "Common Carrier" protection to ISPs - which are, in fact, today's counterpart to telco's of earlier times, which continue to enjoy that protection...
...must be ASSUMED to be tied up with bringing in $$$ of off-shore companies (eg, "Big Content" owners), eg, in the form of lawyers' fees, & (if they send people to work the cases) hotels & entertainment expenses.
Doing so lets the balance tip so unfavorably AGAINST the People of Australia, that the Gov't is abusing its power, at our expense!
Cases like the one against iiNet but undue pressure on smaller ISPs (ie, the only ones which Big Content owners would risk suing).
Telstra loves this!
But Australians will lose BIG, ie, if this kind of unnecessary suits aren't STOPPED by the extension of "Common Carrier" protection to more our present-day Common Carriers, ie, ISPs!
And the Gov't is here to serve OUR interests, NOT Telstra's and our lawyers'!
Sven
"However an AFACT spokeswoman said the group has not lodged an appeal yet and is unaware of any plans to do so. The organisation has until 25 to do so."
'Until 25'? The 25th of this month? 2025?
Trevor Clarke
@Sven - thanks for the pick up. It's fixed now.
Regards,
Trevor
barry
Ok that does it.. I am no longer going to buy/rent dvds and I am going to stop going to the movies. Clearly these guys are just too thick to get it. Lets see how many people you can sue when the money starts running dry.
John Smith
Good work to the studios. They couldn't try any harder to act like the corporate scumbags they are.
If it wasn't for this action, I wouldn't be implementing an immediate ban on DVD and CD purchases. Looks like Bit torrent is going to get a hammering from this point onwards!
Itchy on Sydney
When AFACT first ran up their website a DNS query would show that it was hosted at Fox Studios in Sydney. They seam to have fixed that now.
It looks like their corporate site is still on the old Fox nameserver though,
http://www.robtex.com/dns/afact.com.au.html#graph
Murdoch should get this fixed or the charade that they represent big old media may fall over.
We're such idiots.
mm.
Well this is the biggest load of hogwash I've ever heard. Pursuing legal costs for a case lost? I don't think so. They don't deserve a cent, the greedy pigs.
Gym_
WTF !!! Dose this mean if i get convicted of burglary that i can go back to court and ask to be reimbursed for my petrol for carrying there stuff away to the Sunday markets ?
The balls of these people is amazing but i guess when u have a minister in one pocket and a trillion dollars in the other ...
I too will never buy a DVD or a Music CD Until some one has the balls to stand up to the cartels.
Johnny
Do we need any more proof that the film industry clearly is in support of the government becoming fascist?
They first wanted to sue a service provider who was acting 100% within the law.
They then lost this case, and now want to recoup their legal costs, which will endup costing them even more money.
Oh yeah and your losing public support, fast.
Less and less people are buying movies/dvds/games, all because of the idiots who run AFACT.
Laws for Sale
I download music from www.mp3.com. Free samplers, and can followup with purchase of the rest of the album. The artists get my money. A different business model to the Big Bucks parasites squeezing the income and opportunities of the artists, and renting prostitute politicians to sucker the public. What sort of low joke is the legal system when the biggest pockets decide the law. Once Americans made an income from selling good stuff, now Big Business has moved production to China, and they only survive by selling drugs and this sort of extortion racket. Next it will be criminal to disclose where goods can be had cheaper than the Coles-Woolworths monopoly.
Anwar Saadullah
Congratulations iiNet! Go all out to bankrupt those ugly, greedy and hungry monsters.
Bruce
I think if anyone here was hit with a $4M bill they would be looking at ways to reduce it. AFACT are not likely to receive any money from iiNet but are likely to have their own liability reduced in proportion to the parts of the case they won.
Remember this is the legal profession. No one makes any money if the customer only walks through the door once.
AFACT also win if this issue is kept in the media spotlight with the usual claims of theft, supporting terrorism and millions out of work - while journalists ignore the theft of public property by corporations gaining copyright extensions, dodgy patents and even dodgier contracts for artists.
Anwar Saadullah
Why do these cowards avoid taking legal action against the giants like Telstra of Australia and Optus of Singapore? They are aware, they will be slaughtered to pieces. They are mistaken to think, they can bully iiNet. Very likely, these cowards overlook the fact, the Courts of Australia are just and cannot be bought-over. Justice prevails in this country. Take them on, iiNet, till they pack up and go home for good. The majority of Australians will be behind you, iiNet. O yes, before we forget, Congratulations to you, iiNet, and shame to AFACT with no fact.
Danny Andrijanic
I've been Telstra cable for five years because it's the fastest available in my area but I'm now cutting over to iiNet DSL in protest of this BS. I'm willing to suffer some additional latency to give these people additional revenue. I'll get more bits per month anyway.
Yo Yo
AFACT are even trying to weasel their way out of their OWN responsibilities.......
Yeah lie, cheat and scheme to force your market monopoly upon everyone - and when it blows up in your face - run away crying, "Oh it's not fair - we shouldn't have to pay".
Weasels..... kick them out the front door - all the way to the gutter where they belong.
StevoTheDevo
They should really get some new legal advice.. Clearly their current team is fleecing them for every cent they can get!
The original case was an uphill battle, this is an inverted battle!
If AFACT win costs against iiNet, the world will have turned upside down.
If anything, iiNet's costs should be covered by AFACT.They brought the waste-of-time-case to the court, they should pay for the privilege of doing so.
Chris
Um, I think this is a very misleading article. Don't get me wrong I think this case should never have existed and am glad iiNet won.
My reading of the limited actual information in this article is
"AFACT was ordered to pay iiNet's costs to the tune of $4 million" and "AFACT put in application for costs to be re-heard and it asks for costs to be adjusted for the parts of the matter that iiNet lost"
Now the obvious conclusion to be reached is that AFACT thought the $4 million was excessive and believes that it should be reduced based off, and I quote "the parts of the matter that iiNet lost".
However the narrative put forward in this article is that AFACT wants iiNet to pay their legal fees.
I love to see the movie studio get a good kick when they try stupid stunts like this trial but resorting to flat out lies is a mistake. Why? well the movie industry probably considers the idea of resorting to flat out lies their intellectual property and may sue you.
Derwan
As a law-abiding iiNet subscriber, I don't appreciate part of my fees having to be put towards defending a lawsuit.
I hope the judge dismisses this action and orders AFACT to pay costs for this attempt as well.
Hellfire
AFACT lost the case because they had no valid case against iiNet under the Law. I believe they have come out with the ridiculous statement that this is not the result the Commonwealth Government wanted. Have they not heard of the separation of powers between Government and the Law Courts? Anyway they should pay up and give up and not cost their members more money.
FrankK
If this is the "logic" upon which they based their original legal grounds - is it any wonder why they lost !!!
Michael
I agree with #28, the facts stated in the article and what the article actually tries to imply are two very different things.
AFACT is not asking iiNet for a single cent. They are going to be paying iiNet a lot of money regardless, they are just asking for this compensation to be reduced because some of iiNet's legal costs relate to matters in which the judge found AFACT correct.
To me, this actually seems fair enough, but I'm not a lawyer and I have no idea if there's any precedent. The losing party pays the winning party's legal costs - minus any money blown by the winning party on a point where the court conceded (despite losing the case overall) that the losing party was right. Sounds fair enough.
Yes, it's a bit nitpicky, and AFACT is obviously looking out for their own members' interests and nobody else's, but that's their job. What would you expect them to do? Endorse copyright infringement? The case was rightly thrown out, but AFACT will continue to do their job... watch out users, we're next. (And there'll be no question about who's right.)
MarkE
By the other comments, I'm probably preaching to the converted, but ...
IINET (my ISP, I'm proud to say) is being asked to pay and/or not receive costs for points of law conceded during the trial. Imagine a parallel. You sue me for damages because you claim that a workman employed by me dropped a heavy tree branch on my car. I don't believe that I had any employees in the area. We argue, and eventually I'm forced to concede that I did. But it turns out that someone else entirely dropped the branch on your car. You've sued the wrong person. But you then claim you shouldn't have to pay costs for the argument about where my employees were, because you won some little points, but not the actual argument. INSANE. There wouldn't have been any costs for you or me without the failed court case. I trust that IINET will prevail again and (I wish but doubt) recover punitive costs.
Laws of Anarchy
I cannot see how AFACT could have a law which allows them to sue the ISP for allowing copyright infringement without this applying to other Intellectual Property covered by copyright, such as the content of Computerworld, or software source code.
So the only coherent law must be "Common Carrier" status for the ISP, similar to SMS with the phone carriers, or paper mail with Australia Post. If "criminal" acts are performed, the police and aggrieved party must go after the perpetrator. Is a taxi driver liable if he transports someone to perform a crime because he did not ascertain their purpose, and monitor their subsequent activity ?
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