iiNet v AFACT: film companies take appeal to High Court

High Court appeal to focus on iiNet's alleged authorisation of copyright infringement
iiNet chief executive Michael Malone.

iiNet chief executive Michael Malone.

The battle between Australian ISP iiNet and a consortium of 34 film companies has taken another turn after the recent appeal dismissal, with an Australian Federation Against Copyright Theft press release stating the companies' intention to take their appeal to the High Court of Australia.

The initial legal action, which has been running since November 2008, alleged that iiNet knowingly failed to stop copyright infringement by its users despite being supplied with evidence. The case was decided in favour of iiNet in February 2010, and an appeal ran from then until the most recent judgement — again in iiNet's favour.

The AFACT media release details the consortium's intention to focus its upcoming High Court appeal on iiNet's alleged authorisation of users' acts of copyright infringement, rather than its knowledge of the acts taking place. AFACT's executive director Neil Gane outlines the federation's position in no uncertain terms: "The Full Federal Court unanimously found that iiNet had the power to prevent the infringements of its users from occurring and that there were reasonable steps it could have taken, including issuing warnings.

"However, two judges of the Full Court went on to find that iiNet had not authorised the infringements of its users and that is what we are appealing. We say they did not apply the legal test for authorisation correctly."

At the time of the first appeal's dismissal, iiNet chief executive Michael Malone said he was confident of the ISP's position: “We don’t believe that we have authorised breach of copyright or done anything to encourage customers to breach copyright. “All of this legal action hasn’t stopped one customer from downloading anywhere in Australia. I’d hope the rights holders will now see this is not getting them where they want to go, and they’ll return now back to the table and say ‘let’s find a better way’.

"We’ve wasted two years now and it hasn’t done anything to address this problem.”

No details have been released so far on the date of the iiNet v AFACT High Court appeal hearing.