news iiNet today emerged victorious in a landmark High Court victory against a coalition of film and TV studios on the issue of Internet piracy through peer to peer platforms like BitTorrent, in the conclusion of a long-running case which is viewed as the a test for how Australia’s telecommunications industry will deal with the issue in future.

“#iitrial appeal dismissed!” wrote iiNet chief executive Michael Malone on Twitter this morning. A statement by the court, available online in PDF format, states:

“Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants’ copyright in commercially released films and television programs.”

It appears that the full judgement is available online here.

A group of 34 parties, comprised of most major Australian and American film studios and led by umbrella organisation the Australian Federation Against Copyright Theft, first took iiNet to court in 2009 after claiming iiNet had “authorised” its users to download pirated movies and television over the Internet. 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).

After the original decision of not guilty made in February 2010 was appealed, the full Australian Federal Court ruled on appeal in February 2011 that iiNet was not responsible for the illegal downloading. However the parties against iiNet decided to attempt to appeal the decision yet again, lodging an application soon after on the 24th March 2011, with the High Court of Australia for a special leave to appeal grant. In August the High Court agreed to hear the case.

Today, in its statement, the High Court noted that it had “unanimously” dismissed AFACT’s appeal.

“The Court observed that iiNet had no direct technical power to prevent its customers from using the BitTorrent system to infringe copyright in the appellants’ films,” its statement read. “Rather, the extent of iiNet’s power to prevent its customers from infringing the appellants’ copyright was limited to an indirect power to terminate its contractual relationship with its customers.”

Referring to a large number of copyright infringement notices sent to iiNet, which some ISPs forward on to their customers (but iiNet does not), the HIgh Court held that the information contained in the AFACT notices, as and when they were served, did not provide iiNet with “a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers”. iiNet has always maintained such issues should be handled by the police, involving a reasonable burden of proof that a user has infringed copyright.

“For these reasons, the Court held that it could not be inferred from iiNet’s inactivity after receiving the AFACT notices that iiNet had authorised any act of infringement of copyright in the
appellants’ films by its customers,” wrote the Court.

iiNet CEO Michael Malone (pictured) has consistently called on the industry to come to a “workable” solution to piracy problems instead of litigating the issue. iiNet itself provides access to film and TV content through a bundled IPTV set-top box developed by a partner company, FetchTV. “I know the Internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone said in August last year. “We remain committed to developing an industry solution that sees more content readily and cheaply available online as well as a sensible model for dealing with repeated copyright infringement activity.”

However, AFACT and its member organisations haven’t been so keen. In July AFACT wrote to at least one local ISP requesting a meeting to discuss implementing an “automated processing system” for copyright infringement notices to be distributed to customers.

It is believed that AFACT considers early judgements in its case against iiNet to have opened the door for it to legally approach Australian ISPs about online copyright infringement, provided it supplied the right level of detail about the alleged offences. In mid-2011, a number of ISPs have confirmed the organisation has approached them about the matter. It is not yet clear how today’s judgement will affect the way AFACT interacts with the broader industry.

Currently, different ISPs take different approaches to the issue of online piracy, with some committing to forward on copyright infringement notices to users, followed by potential disconnection of their service, and others either ignoring the letters or forwarding them to law enforcement authorities.

iiNet and AFACT are also engaged in out of court talks regarding Internet piracy, with the Federal Attorney-General’s Department holding a series of meetings through late 2011 and early this year between iiNet, AFACT and other telcos, content owners and representative groups. However, consumer representatives have been explicitly barred from the talks, and the department has consistently declined — even through the Freedom of Information request process — requests by media outlets for more information about what is being discussed.

Australia’s division of the Pirate Party, a political movement which campaigns for digital rights and has been successful electorally in Europe, said in a statement that it should come as “no surprise” that it welcomed the ruling.

“We reiterate that ISPs behave similarly to the postal service – they are the carriers of the message, and that message should remain private,” said Brendan Molloy, Secretary of Pirate Party Australia. “It is not their business to police users, but merely to comply where necessary with authorities. ISPs are not, and should never be, responsible to anyone other than their subscribers and local law enforcement agencies.”

“However, this is not the end of the issue. We have continually protested against the closed-door meetings conducted by the Attorney-General’s department, in which industry representatives are given priority, and the public are ignored. The citisens of Australia are being refused participation in the ‘piracy debate,’ when they should be the most vocal of concerned parties,” Molloy continued. “Copyright is not just an issue for rights holders and service providers – the voice of the public must be given priority above all else.”

The response
In a statement released immediately following the judgement, iiNet chief executive Michael Malone thanked staff, customers, supporters and iiNet’s legal team, from law firm Herbert Geer, for their strong support throughout the case, and said the judgment supported the company’s position and proved the claims made against it were unfounded.

“iiNet has never supported or encouraged unauthorised sharing or file downloading,” Malone said. “Today’s High Court five-nil ruling confirms that iiNet is not liable for ‘authorising’ the conduct of its customers who engaged in online copyright infringement. This marks the end of more than three years of legal argument and challenges.”

Malone reiterated his view that “increasing the availability of lawful, online content in a more timely, affordable and reasonably priced manner”, brought the focus back to customers and was the best method to protect content owners’ copyright. He said there was strong evidence that content partnerships and agreements between ISPs, legal websites and copyright holders had done more to reduce ‘piracy’ and to showcase copyright holders’ materials than this unproductive legal battle.

“Increasing the availability of licensed digital content is the best, most practical approach to meet consumer demand and protect copyright,” Malone said. “We have consistently said we are eager to work with the studios to make their very desirable material legitimately available to a waiting customer base – and that offer remains the same today.”

In an interview with TorrentFreak prior to the judgement this morning, AFACT executive director Neil Gane said that regardless of the decision, “the landscape has changed”. “In the three years since the case commenced,” he added, “legislators, regulators and courts around the world have recognized that ISPs must play a central role in preventing online copyright theft.”

Both iiNet and AFACT will hold press conferences this afternoon to discuss the decision.

Opinion/analysis to follow once the dust has settled.

Tweet

1. Zwan
   Posted 20/04/2012 at 10:13 am | Permalink | Reply

   With all this money spent on lawyers, the industry could have innovated their business to actually make money on the internet instead!

   Epic face palm this kind of stuff continues. I swear their exec’s of these companies must of all previously been bankers.

   • socrates
     Posted 22/04/2012 at 10:42 am | Permalink | Reply

     Don’t you mean ‘must of all previously been lawyers’?

     Only lawyers would see value in handing that much money to the legal industry, instead of bringing content marketing methods into the 21st century.

2. Andy
   Posted 20/04/2012 at 10:14 am | Permalink | Reply

   Sanity prevails! :D

   • Stephen
     Posted 20/04/2012 at 1:45 pm | Permalink | Reply

     No, Sanity’s owned by Sony.

3. Adam
   Posted 20/04/2012 at 10:35 am | Permalink | Reply

   10 years from now, iiNet will be producing and distributing content quickly and cheaply, today’s appellants will be screening reruns of Bewitched for grannies, and this whole circus will be nothing more than the butt of jokes.

4. Bob.H
   Posted 20/04/2012 at 10:40 am | Permalink | Reply

   I nice result for sanity and common sense.

   Now I hope that our politicians of all persuasions don’t cave in to money and pressure from the rights industry and start enacting dumb laws that don’t take into account the rights of the consumer.

5. @Matt_Phipps
   Posted 20/04/2012 at 10:53 am | Permalink | Reply

   iiNet just recovered several $million in legal fees. Who will they buy next?

   • Michael Wyres
     Posted 20/04/2012 at 1:38 pm | Permalink | Reply

     Lulz. Gold.

6. Goddy
   Posted 20/04/2012 at 11:48 am | Permalink | Reply

   AFACT, meet bitch stick. Bitch stick, AFACT.

7. Bourke
   Posted 20/04/2012 at 12:43 pm | Permalink | Reply

   French, Gummow, Hayne, Crennan and Kiefel – thank you for once again having the courage to add meaning and value to our Justice system. Hopefully you took as much intrinsic pleasure in reaching your judgement as we did in reading it :)

   • Adam
     Posted 20/04/2012 at 1:04 pm | Permalink | Reply

     I suspect they just interpreted the law, rather than taking sides. That’s not to say that the HCA announcement was not an absolute joy to read, though.

     • Michael Wyres
       Posted 20/04/2012 at 1:39 pm | Permalink | Reply

       Rather than “suspect” they interpreted law, legally that’s all they CAN do…they can only make judgements based on the laws as they stand. AFACT wanted a moral judgement.

       • Adam
         Posted 20/04/2012 at 1:48 pm | Permalink | Reply

         Yeah, I only used the word ‘suspect’ because I didn’t want to come across as combative.

     • Jo
       Posted 20/04/2012 at 11:03 pm | Permalink | Reply

       Then applaud them for going about their jobs with a high focus on ethics, when so, so many others don’t!

8. Ryan
   Posted 20/04/2012 at 1:38 pm | Permalink | Reply

   Congratulations and thank you, iiNet.
   – sincerely The Internet

   • Glenn
     Posted 20/04/2012 at 1:47 pm | Permalink | Reply

     iiNet, you stood up to an arm of a coalition of international bullies hell bent on destroying freedom of the internet, and the social benefits that it brings to all of society.

     Congratulations and thanks from me too.

   • The Internet
     Posted 20/04/2012 at 1:48 pm | Permalink | Reply

     Indeed. I am most grateful to still be free and open. For now.

9. Stephen
   Posted 20/04/2012 at 1:50 pm | Permalink | Reply

   AFACT, sponsored by Hollywood. The fact is Hollywood needed an Australian front for their legal shenanigans, to protect its image.

   Good stuff, iiNet. AFACT, and the rest of you, learn that modern technology is here to stay and develop your markets. The courtroom does you no favours, but most of your consumers are happy to pay for product at the right price and using the right delivery medium.

   The days before home video recorders are long gone, and content producers have made a motza, but they’re still complaining whenever a new technology comes along that promises to expand their business.

10. djos
    Posted 20/04/2012 at 2:48 pm | Permalink | Reply

    hooray, common sense has once again prevailed and the copyright trolls got slapped back to reality!! :-)

11. Divv
    Posted 20/04/2012 at 5:00 pm | Permalink | Reply

    How was this all decided by 10am!?

12. Solomon
    Posted 20/04/2012 at 8:35 pm | Permalink | Reply

    just singed up to iinet basicly cause they help fight for freedom of internet. JOIN THE NEW NUMBER 2!!

13. eyepatch
    Posted 25/04/2012 at 1:53 pm | Permalink | Reply

    This is not about copyright infringement – it is about the powers of judges being taken away by the movie and music industry. See comments at https://technutopia.com/forum/thread7253.html#post96737 – no wonder they lost.

• • Topic
  • Voices
  • Posts
  • Freshness
• • Malcolm Turnbull, Time Traveller

    Started by:  quink in: Everything else

  • 2
  • 4
  • 4 days, 10 hours ago

     Karl

  • Article on 'Ultraviolet'

    Started by:  ray73864 in: Everything else

  • 2
  • 2
  • 1 week ago

     Karl

  • Surface sells out … of its tiny amount of stock?

    Started by:  Renai LeMay in: Gadgets

  • 4
  • 4
  • 1 week, 1 day ago

     douglasrose

  • Coalition fraudband plan summary…

    Started by:  Hubert Cumberdale in: National Broadband Network

  • 4
  • 4
  • 1 week, 6 days ago

     JamesH1

  • NBN Is A Question Of Reliability

    Started by:  JamesH1 in: National Broadband Network

  • 1
  • 1
  • 1 week, 6 days ago

     JamesH1

  • Renai asked:

    Started by:  Tinman_au in: National Broadband Network

  • 1
  • 1
  • 1 week, 6 days ago

     Tinman_au

  • What Happened to Whirlpool posts

    Started by:  MikeK101 in: Everything else

  • 2
  • 2
  • 3 weeks, 5 days ago

     Bob.H

  • Conroy/Turnbull NBN Debate Next Week

    Started by:  zephram in: National Broadband Network

  • 1
  • 1
  • 3 weeks, 6 days ago

     zephram

  • Blocked from posting? Let me know

    Started by:  Renai LeMay in: Everything else

  • 2
  • 2
  • 4 weeks, 1 day ago

     Abel Adamski

  • Falsehoods of the day

    Started by:  Karl in: National Broadband Network

  • 4
  • 5
  • 1 month, 1 week ago

     Anonymous

  • Is IBM selling its Network Services Division to Telstra?

    Started by:  Renai LeMay in: Everything else

  • 1
  • 1
  • 1 month, 2 weeks ago

     Renai LeMay

  • 10 Terabit NBN plan? Yes please :)

    Started by:  daniel996 in: National Broadband Network

  • 2
  • 2
  • 1 month, 2 weeks ago

     Karl

  • Renai (or anyone else?): List of working tags?

    Started by:  Tinman_au in: Everything else

  • 3
  • 6
  • 2 months ago

     midspace

  • Receiving spam from "OEMSoftware Newsletter"?

    Started by:  Renai LeMay in: Everything else

  • 4
  • 4
  • 2 months ago

     midspace

  • A brief update on banned users

    Started by:  Renai LeMay in: Everything else

  • 6
  • 9
  • 2 months ago

     Autocrat

•