AFACT v iiNet: Appeal decision to be known in a fortnight

AFACT says it is yet to determine whether to launch an appeal against its loss to iiNet, but has until February 25 to make the move

AFACT v iiNet: The film studios have until February 25 to make a decision on an appeal. Image: Outside the Federal Court after Justice Cowdroy threw out the case against ISP, iiNet

AFACT v iiNet: The film studios have until February 25 to make a decision on an appeal. Image: Outside the Federal Court after Justice Cowdroy threw out the case against ISP, iiNet

The Australian Federation Against Copyright Theft (AFACT) will take the next two weeks to consider appealing the recent loss of a copyright infringement case against ISP, iiNet.

Presiding judge in the Federal Court of Australia, Justice Cowdroy earlier this month found that despite findings of copyright infringement by iiNet customers, the Internet Service Provider (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.

An AFACT spokeswoman said in a phone interview with Computerworld it has not determined whether to appeal the court decision.

“We would lodge our appeal with court and notify media if we decide to appeal,” she said.

The group has until February 25 to appeal under a 21-day window granted by the Federal Court of Australia.

Speaking on the day of the court case, AFACT executive director Neil Gane said he was disappointed by the decision.

“Today’s decision is a setback for the 50,000 Australians employed in the film industry,” Gane said. “But we believe this decision was based on a technical finding centred on the court’s interpretation of the how infringements occur and the ISPs ability to control them.

“We are confident that the government does not intend a policy outcome where rampant copyright infringement is allowed to continue unaddressed and unabated via the iiNet network.”

One Melbourne University copyright law expert has told Computerworld the Federal Court decision could just be the start of a long legal war.

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 said. "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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