news The Federal Government would “closely examine” the High Court’s judgement in the long-running copyright infringement case won by ISP iiNet over film and TV studios this morning, Federal Attorney-General Nicola Roxon said this afternoon, as she noted that closed-door talks held by her department with industry on the matter would continue.

The High Court this morning knocked back a final appeal by the studios, represented by the Australian Federation Against Copyright Theft. The studios first took iiNet to court in 2009, claiming iiNet had “authorised” its users to download pirated movies and TV over the Internet. However, the court said today, iiNet had no ability to prevent its customers from infringing copyright, and copyright law was not suited to enforcing the laws of content owners through such platforms. Subsequently, AFACT said the loss illustrated that Australia’s Government needed to step in and take action on the issue of Internet piracy.

“The Government will examine the High Court’s decision closely,” said Roxon in a brief statement in response issued this afternoon.

The news comes as the Federal Attorney-General’s Department has over the past six months hosted a series of closed door meetings on the issue between ISPs like iiNet and rights-holder organisations such as AFACT, with industry groups such as the Communications Alliance also involved. Subsequent Attorneys-General (Roxon and her predecessor Robert McClelland) have emphasised their desire for an industry-led solution to the issue.

“Industry stakeholders have been meeting regularly during the last year to develop a code of conduct to address the issue of illegal downloading,” Roxon added this afternoon. “The Attorney-General’s Department will continue to facilitate these discussions and we hope that industry will continue to work together to find a range of solutions to illegal downloading.”

However, the meetings held by the Attorney-General’s Department have been less than transparent, and according to iiNet, have been going around in circles.

The Attorney-General’s Department has used a series of complex legal arguments to deny the release of documents associated with the meetings under Freedom of Information laws — redacting, for example, an entire 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department. The moves have led to the Australian Greens filing a motion in the Senate requesting that the documents be released. In addition, representatives of consumer groups have been explicitly barred from attending the talks.

This afternoon, iiNet chief executive Michael Malone reportedly said his company might simply back away from the meetings altogether. “My preference would be to walk away now,” he said at a press conference, according to iTNews.

Another key telco involved in the talks, Telstra, this afternoon said in an emailed statement that it remained open to constructive discussions with rights holders, the industry, consumer groups and Government to seek a response to this issue that “appropriately balances the interests of all stakeholders”.

The sole organisation to publicly reveal any information about the talks has been iiNet. Recently, the ISP’s regulatory chief Steve Dalby posted comments on Delimiter stating that there was a “massive” gap in the talks between what the ISP and content industries wanted. “Most, if not all of the discussions over the years have been conducted between the rights holders and the ISPs,” he said. “These have been fruitless. The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don’t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.”

Separately, a coalition of most of the nation’s major ISPs last year proposed a scheme for handling Internet piracy which would see Australians issued with warning and educational notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if they keep on pirating content online. At the time, AFACT declined to comment on the issue, citing the need for the iiNet trial to go ahead.

Consumer input needed
Today another group associated with copyright issues, the Australian Digital Alliance, which primarily represents universities, libraries and some Internet-focused organisations such as Yahoo and Google, said it didn’t believe the battle between ISPs and the content sector was over yet, stating the High Court had “left open the possibility of a targeted legislative scheme to address unauthorised file sharing issues”.

However, the group’s chairman Derek Whitehead issued a warning that any legislative response to the High Court ruling must be carefully balanced and informed by the needs of consumers, as well as the content industries and ISPs.

“The Attorney-General’s Department has been working on an industry solution with the ISPs and content industries for some time. Consumers should be included in these discussions, because consumers, as end users of copyright material stand to be greatest affected by any legislative or industry outcome,” Whitehead said in a statement.

“The ADA encourages the Government to take wide consultation on this issue, and to ensure that consumer representatives are brought into the discussions,” the ADA statement said. “A fundamental issue to be taken into account in any legislative or industry response is the lack of legitimate content available to consumers in Australia. More needs to be done to make content available in an affordable and accessible way.”

The comments echo statements made in January by the Greens.

“What I find the most offensive about that, is that they locked the people out of the room that actually matter,” Greens Communications Spokesperson, Senator Ludlam said at the time. “All of the writers, the creative artists, the performance people, they’re not in there. The rights holders are in there. The end users, the consumers … us, are locked out of the room as well.”

Ludlam said it was the “intermediaries” who were discussing the issue under the auspices of the Attorney-General’s Department, who had been told to come up with something that was “not too offensive” for their corporate interests. “They’ve locked out the producers and consumers. The model which will be introduced in Australia, when we get to hear about it, will probably be stuffed and offensive,” he added.

Image credit: Timeshift9, Creative Commons

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1. Daniel
   Posted 20/04/2012 at 4:43 pm | Permalink | Reply

   Have you ever thought these ‘secret’ talks is the Government giving rights-holders the opportunity to express their concerns and potential-solutions openly, without discussion being interrupted by privacy and open-internet advocates? I highly doubt that they’re working together to craft new copyright laws to spring on the general public.

   It’s kinda like buying a house. The real-estate agent acts as the mediator between the seller and buyer. In private, listen to the opinion of one and then communicate it to the other. In the end, for the house to sell, both will have to come to an agreement.

   • Joho
     Posted 20/04/2012 at 5:24 pm | Permalink | Reply

     It’d be nice to think that’s the case, but the closed door negotiations of the Anti-Counterfeit Trade Agreement (ACTA) of which Australia had already signed with no public consumer groups present during negotiations leaves me with little faith in these closed door negotiations.

2. c3l3st0
   Posted 20/04/2012 at 5:26 pm | Permalink | Reply

   still wondering, why the f**** industry has that much pooooower!!!!!

   • Daniel Myles
     Posted 20/04/2012 at 5:52 pm | Permalink | Reply

     Have you seen how much they donate to the Labor party?

     One example

     http://periodicdisclosures.aec.gov.au/Donor.aspx?SubmissionID=48&ClientID=21869

     • Alex
       Posted 20/04/2012 at 6:59 pm | Permalink | Reply

       They look like they donate as much or more to the Libs as well…

       Nothing like an each way bet.

       • bdc
         Posted 22/04/2012 at 12:14 pm | Permalink | Reply

         There is only one sure-fire way of getting the laws you want, and that is to buy both sides.

         Ban ALL political donations, one person one vote.

     • Daniel
       Posted 20/04/2012 at 7:20 pm | Permalink | Reply

       No different from Huawei showing special preveledges to Senior Coalition MP’s.

   • Daniel Myles
     Posted 20/04/2012 at 5:54 pm | Permalink | Reply

     You can buy legislation in this country, its wonderful. Democracy at its finest.

3. Jojo
   Posted 20/04/2012 at 5:49 pm | Permalink | Reply

   wonder how long before Australia sees it’s own version of SOPA\PIPA

4. AJ
   Posted 20/04/2012 at 6:57 pm | Permalink | Reply

   I do support a change in the law BUT whatneeds to happen is that you can only be charged if the content is avaliable in this country.
   So if you don’t release something here then it is fair game until it is released it forces content holders to make it available and only then should we be able to fine people..

   • tom
     Posted 23/04/2012 at 4:37 pm | Permalink | Reply

     +1

5. Guest
   Posted 21/04/2012 at 8:48 pm | Permalink | Reply

   The decision was right – but using it to justify IP theft is wrong.

   • Bob.H
     Posted 22/04/2012 at 9:07 am | Permalink | Reply

     IANAL but I think that the violation of the copyright holders rights is not actually theft as it is not covered by the Criminal Code

     I don’t think anyone is trying to use the iiNet case to justify abusing the rights if IP rights holders. However what a lot of people are saying to the rights holders is “if you want us to respect your property rights then you have to show us respect and stop price gouging on a regional basis and platform basis and make your IP easily available to everyone at a reasonable price.”

     If AFACT members listened to their customers the problem they have with “piracy” would greatly diminish.

     • bdc
       Posted 22/04/2012 at 12:15 pm | Permalink | Reply

       Yeah, why would we use the iiNet case to justify it, it’s much easier to justify by the actions of the copyright holders ; D

     • Gordon Edwards
       Posted 22/04/2012 at 5:34 pm | Permalink | Reply

       +1.

       I want to see that movie at the same time as people in [whatever region]. I don’t mind paying for it, actually I would like to pay for it, but you won’t give me the chance.

       I really don’t care about “copyright issues”. Your Regionalisation Scheme prevents me from seeing/listening unless I move house — guess what? I’ll just download it. I would like to pay for it, but obviously that’s too difficult for you.

       Why can’t we consumers/viewers have something like iTunes? Is that too much to ask? Is the technology too hard?

       Come to our party, and watch piracy disappear.

6. Guest
   Posted 23/04/2012 at 11:18 am | Permalink | Reply

   “Come to our party, and watch piracy disappear.”

   Maybe they will, but maybe only after every possible avenue of maintaining a profitable status quo has been absolutely and completely cast by the roadside or bittorrent continues to grow and nobody walks into stores or rental stores anymore. When we dont buy music in a mainstream way and get our music from unsigned acts directly from the creator.
   When the inbalance of power tips right the otherway to the creators/end users

   Maybe only then will they admit defeat and admit that their customers were right.

7. Stephen
   Posted 23/04/2012 at 4:57 pm | Permalink | Reply

   If you’re concerned about the Attorney-General’s approach to this issue, her office can be contacted at attorney@ag.gov.au, or using the information at http://www.attorneygeneral.gov.au/Contacts/Pages/default.aspx.

   Given that the industry seems to have an open door, one assumes that she is amenable to being contacted by ordinary Australian citizens.

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