iiNet fights off AFACT’s piracy appeal


The full bench of the Federal Court today dismissed an appeal by the Australian Federation Against Copyright Theft following its loss against iiNet in a high-profile copyright infringement and internet content piracy case decided early in 2010, handing a second victory to the ISP in its battle against the organisation and its movie studio backers.

Full details are yet to be filed from the courtroom in Sydney today, but the verdict was announced straight away by the court, although the allocation of legal costs has yet to be determined. Onlookers now expect the case to be appealed to a higher authority — Australia’s High Court.

The studios first dragged iiNet (and its chief executive Michael Malone, pictured) into the Federal Court back in November 2008, arguing that the ISP infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers copying films and TV shows over its network.

The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises and the Seven Network (Australian licensee of some of the infringed works).

In February last year, Cowdroy made it clear that the means of infringing the studios’ copyright was the use by iiNet customers of the BitTorrent file-sharing system. “iiNet has no control over BitTorrent,” he said. But AFACT immediately appealed the verdict.

“The court 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,” said AFACT executive director Neil Gane at the time. “In line with previous case law, this would have amounted to authorisation of copyright infringement.”

The trial has been viewed by Australia’s ISP industry as a major landmark case to help determine how ISPs will react in future to users using their networks to download copyrighted material. iiNet had not been forwarding email communication from AFACT to users who AFACT had alleged had breached copyright, whereas some other ISPs have been complying with the request.

Full details to follow. Image credit: iiNet


  1. Heh…in the last five minutes, I’ve heard that AFACT won, and that AFACT lost…time to let the dust settle for a few minutes I think… ;)

    • They lost this round…and that’s A FACT…
      They will appeal to the High Court…and that’s almost certainly A FACT…
      They will continue to look like douchebags…and that’s definitely A FACT…

      • They certainly lost the battle. But reading the judgement in detail it seems as though they are winning the war.

        The result remains indeterminate though.

        • Yeah – the result – (though mostly in favour of iiNet) – is a little wishy-washy.

          On the idea of an appeal, if AFACT do appeal to the High Court, they are going to have to come up with something new.

          Their application has been defeated twice now in it’s current form, so if it is gonna win the third time around, they are going to need a new angle.

          They’ll appeal, but whether it is in their belief that they can still win, or whether it’s just to make a point remains to be seen.

  2. AFACT will continue to have difficulty targeting ISPs, simply because ISPs aren’t a source of infringement, anymore than Australia Post is reponsible for someone sending a letter with drug tabs in it.

    However, AFACT will continue to claim they’re being victimised by ISPs who “allow” infringement to continue. One wonders how much financial impatc AFACT itself is having on the industries bottom line – ironic, really.

  3. Coming next will be AFACT’s case against the RTA for allowing motorists to transport pirated DVDs on their roards.

    • I believe AFACT have yet to claim infrigement against (because, clearly, they encourage copyright infringment by simply allowing access to):

      – all ADSL, Cable, Fibre, Wireless & 3G manufacturers
      – all (physical) copper and fibre cable manufacturers
      – all PC, Mac, Mobile, Portable, Tablet and Mobile manufacturers
      – all air, rail & sea freight companies (for transporting the the hardware to allow infringement)
      – all air, rail & sea vehicle manufacturers (for creating the things that transport the things used with the things used for infringement)
      – all women for creating the people whom use any/ all of the above
      – all men for, well, ‘assisting’ in the creation of said people whom have some random involvement in all of the above.

      In other words, the entire AFACT case is built on a ‘chain of events’ that can become so wide as to be rediculous to contest. At which point do the claims cease to have any relivance?

      This all stems from an industry that decided to fight modern forms of ‘media’ transport, rather than embrace it, combined with an almost fascist desire to control said forms.

  4. I thought they won. the judgement is clear that if afact changes some their notices ISPs will be obliged to act on them, especially if AFACT pay a small token cost.

    just because the appeal was dismissed on another basis doesn’t make the opinions of the judges null.

    I hope the case does go to appeal and th high court strikes the appeals court judgement and comes up with their own.

    but then again this means any citzen will be allowed at a nonimal fee and get people terminated simply by showing and IP address had copyrighted material sent to it. for example if I make a film, say a home video, and then. spray the data at the afact ip address I can then call their ISP and demand that they’ve disconnected, he’ll I’ll even hand deliver it that ISP CEO with a bottle of whisky as thanks.

    seriously the judges have no fricke. idea how silly their jdugement is.

      • The problem with the judge’s assertion that by improving the notices, they would have a better case is that their idea of a “better notice” was that the “automated” notices we not very good, but ones which were hand-delivered to Michael Malone, contained snippets of iiNet’s customer terms of service and so on where “better”.

        The thing is, though, it’s not the wording or presentation of the notices that’s even the problem! The problem is that the notices are unsubstantiated and unproven rumors from a third-party. It doesn’t matter how nicely they’ve worded their letters, there’s no “proof” apart from the word of AFACT that any infringement has even happened.

        And even if they can prove it, all they can prove is that the customer’s IP address was involved, not the customer themselves. Maybe this is why iiNet is selling BoB with unsecured wireless by default: so their customers have a reasonable defense that they weren’t the ones downloading infringing works ;-)

  5. As I understand it, AFACT hired a monitoring company to scan BitTorrent networks for infringement. They then sent a list of iiNet IP addresses sharing copyright material and demanded action against subscribers.

    Firstly this is the old worn out attack on BitTorrent and this includes some ISPs. BitTorrent is a legitimate application and used for many legitimate purposes. It is also an attack on file sharing networks eg. Pirate Bay.

    If one had common sense enough to examine Piirate Bay’s website there is a DMCA notice. All the copyright owner had to do is to file a Request for Copyrighted Content Removal WITH PIRATE BAY according to requirements under the law.

    If you search their site for torrents you will find notices in many places saying that “this torrent has been taken down because of request from copyright owner.”

    Wouldn’t it easier just to remove the illegal content? Then no one can download it anymore – problem solved.

    There is a good reason why the US DCMA works like this and I have used it being a copyright owner. To prevent the subscriber from being framed or falsely accused.

    Interesting article here on this very thing

    When the Australian Government negotiated the AUS – US Trade Agreement, one of the issues was our copyright laws. These were supposed to have been amended to align with US copyright law.

    Time to play catchup and revise.

    • When I used the US DCMA and filed a notice with the service provider the whole process took only 15 minutes and the violation was removed.

      I needed no rippoff lawyers or copyright trolls or expensive court cases – geeeez.

  6. The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional safe harbor for online service providers (OSP) (a group which includes internet service providers (ISP)) and other Internet intermediaries by shielding them for their own acts of direct copyright infringement (when they make unauthorized copies) as well as shielding them from potential secondary liability for the infringing acts of others.

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