AFACT v iiNet: ISP files notice of contention

Legal battle continues in landmark copyright case

The legal battles in the Australian Federation Against Copyright Theft (AFACT) v iiNet copyright court case continue. The internet service provider has served a notice of contention with the Federal Court of Australia on 14 grounds of Justice Cowdroy’s ruling.

In particular, iiNet is contending against Cowdroy’s ruling that iiNet had knowledge of copyright infringements on its network and this would have implications for authorisation under section 112E of the Copyright Act.

Justice Cowdroy referred to an earlier copyright case in 2006, Cooper v Universal Music Australia, in his decision. In that case the court found that Cooper knew the nature of the website — providing free MP3s — and was therefore responsible for the infringement.

“However, such finding is an irrelevancy given that the Court has already found that, regardless of s 112E, the respondent did not authorise infringement,” Justice Cowdroy ruled.

Justice Cowdroy also found that the Telecommunications Act would not have operated to prohibit iiNet from acting on the AFACT notices of copyright infringement, noting the issue was irrelevant as he had already found that iiNet did not authorise copyright infringement. The ISP will also contend this point.

The ISP is thought to be tying up loose ends before the case is appealed in the Federal Court.

The company said it was seeking to have the full Federal Court reverse Justice Cowdroy’s finding that exceptions applied which meant that iiNet could use the information in some circumstances.

"This would provide an additional basis for finding that iiNet did not have “the power to prevent” an infringement of copyright and that it would not have been “reasonable” for iiNet to take steps demanded by AFACT that were inconsistent with that prohibition," iiNet said in a statement.

AFACT, however, is having none of it.

“No matter what spin they try to put on it, iiNet are appealing this judgment too,” a spokesperson for the group said.

“iiNet are trying to shore up their defences to the claim of authorisation of copyright theft because if the decision on authorisation is reversed on appeal they will be liable.”

AFACT argues the ISP wants “all the protection of the law but none of the responsibility”.

“The court already found large scale copyright infringements, that iiNet knew they were occurring, that iiNet had the contractual and technical capacity to stop them and iiNet did nothing about them,” the spokesperson said. “In line with previous case law, this would have amounted to authorisation of copyright infringement.”

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