AFACT demands Govt action over iiTrial loss


news The Australian Federation Against Copyright Theft (AFACT) today said its high-profile loss in its High Court case against ISP iiNet illustrated that Australia’s Government needed to step in and take action on the issue of Internet piracy in Australia.

This morning the High Court dismissed an appeal by AFACT and its cohort of several dozen film and TV studios, in the conclusion of a long-running case in which the content owners had alleged iiNet had authorised the infringement of copyright through not taking action against the pirating activities of its users through platforms such as BitTorrent. The case is viewed as setting a precedent for how Australian ISPs will deal with Internet piracy in future.

However, in a statement issued this afternoon, AFACT said the war was not over. “Today’s decision by the High Court exposes the failure of copyright law to keep pace with the online environment and the need for Government to act,” AFACT said in a statement this afternoon.

AFACT managing director Neil Gane (pictured) said in their judgement, the High Court judges had “unanimously recognised that legislative change was required to address the widespread copyright infringements via peer to peer technology in Australia”. “Both judgements in this case recognise that copyright law is no longer equipped to deal with the rate of technological change we have seen since the law of authorisation was last tested,” said Gane. “They both point to the need for legislation to protect copyright owners against P2P infringements.

“The Judges recognise the significant rate of copyright infringement online and point to the fact that over half the usage of iiNet’s internet service by its customers (measured by volume) was represented by Bit Torrent file sharing which was known to be used for infringing activities,” Gane added. “Now that we have taken this issue to the highest court in the land, it is time for Government to act.”

In the High Court’s judgement in the case, the court found that the concept and the principles of the statutory tort of authorisation of copyright infringement were “not readily suited” to enforcing the rights of copyright owners with respect to widespread copyright infringements through platform such as BitTorrent.

“The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes, some of which incorporate co-operative industry protocols, some of which require judicial involvement in the termination of internet accounts, and some of which provide for the sharing of enforcement costs between ISPs and copyright owners,” the court added.

Gane said AFACT and its partner organisations were confident that the Government would not want copyright infringement to go on unabated across Australian networks, “especially with the rollout of the National Broadband Network”, and that the decision showed that Australian law had been left behind by overseas developments in “online copyright protection”.

“In the three years since the case commenced, legislators, regulators and courts around the world have mandated that ISPs must play a central role in preventing online copyright theft,” he said. “Fortunately, many ISPs have come to the conclusion that being involved in online copyright protection is in their commercial interests,” he said. “ISPs are becoming increasingly dependent on monetising legal content and therefore protecting its value.”

Gane said it was too early to comment on the details of the decision but that the copyright owners would be having discussions with Government in due course.

“We thank the actors’ union (MEAA), and songwriters, composers and publishers (APRA), who also had concerns about the outcome of this case, for taking the time and effort to express them to the court,” he concluded. “We would also like to acknowledge all content creators whose movies, music, pictures and words we all enjoy and for whom today’s decision must be extremely concerning.”
The news comes as the Federal Attorney-General’s Department has over the past six months hosted a series of closed door meetings between ISPs like iiNet and rights-holder organisations such as AFACT, with industry groups such as the Communications Alliance also involved.

However, 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.

The sole organisation to publicly reveal any information about the talks is 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.


  1. whaaa we want to keep our old business models and not adapt. *holds breath until Mummy does something*

    • Listen, we just want to control the entire Internet, irrespective of countries, citizen’s rights, and other annoying legal boundaries. We are so behind the rest of the world acting on copyright infringement. Just look how at how Government internet censorship has completely wiped out piracy in China. Or something.

    • Yup. Charge consumers reasonable prices and we might not resort to P2P based copyright infringements. Oh right… that might be a little too out there to consider as an alternative. Props to iiNet for the win!

    • I think the ancient legal principle of Didums – derived from the Sukytup Doctrine – should be applied to AFACT in all future action of this kind.

  2. “High Court exposes the failure of copyright law to keep pace with the online environment and ”

    What it more so highlights is the inability of the 18th century acting entertainment industry to ” step up” and enter the 21st century online digital age

    Look at how prosperous the music industry is since waking up., bout time Gane and his cohorts did the same.

  3. If they have the means to identify copyright infringers then they can foot the bill for chasing the infringers.

    Afterall it is they who are reaping the benefits of copyright, why should they not also have to shoulder the costs of enforcing it.

  4. If find it quite amusing that AFACT state:

    “Today’s decision by the High Court exposes the failure of copyright law to keep pace with the online environment and the need for Government to act”

    where really it should read:

    “Today’s decision by the High Court exposes the failure of our business model in keeping pace with the online environment and the need for Government to act,”

    • Indeed. How about they provide their content to Australian consumers in a reasonably priced and timely fashion. That would reduce quite a bit of the piracy as well as save them on laywer costs and bad pr.

  5. AFACT suing iiNet is the same as a victim of a motor vehicle accident, suing the roads authority and vehicle manufacturer for the actions of a reckless driver.

  6. No, the laws are perfectly adequate. How about you actually use them instead of trying to find ways to move the burden of proof, enforcement and associated costs onto citizens, the government and other companies?

    Grow up and stop wasting everyone’s time (including us tax payers).

    • No, the laws are perfectly adequate.

      No, the laws are not perfectly adequate – anything but… The laws are currently geared for AFACT to sue the guts out of you if they can be bothered to do the leg work and wear the media backlash.

      What is needed is a law change to reflect the crime. ie like a traffic infringement. If you are found to have infringed – $20 fine for the lousy B Grade move you DL or $50 for a late release etc. Not $$$$ for all the millions in revenue you supposedly ripped from Hollywood for DL 1 movie like in the US.

  7. @Copyright Trolls: No go fix your broken business models and quit your winging as until you stop treating your legitimate customers as pirates you will continue to loose sales!!

  8. Ah standard Legalese American Studio responses.. if the law doesn’t work lobby to change the law!

    Worked in US and their hoping it works here!

  9. We don’t sue gun manufacturers, but they provide the means to commit murder, and the people that sell them know it!

    Why sue an ISP for piracy. Sure, they know some people can and will use the internet to infringe copyright, but that doesn’t mean they’re liable!

  10. Down with civil liberties! Presumption of innocence is a hinderance to our cashflow! The government must do something to stop this otherwise our fatcat wages will suffer and we will be forced to innovate or even give the consumer what they want! That would be a tragedy for our industry and must be stopped!

  11. Hey everyone, FYI I have just received this response from the office of the Attorney-General on this issue:

    “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.”

    • Perhaps one of the reasons that legislation fails to keep up with the technology is that there are too many closed door meetings.

    • Nothing will change until the content industry makes its content available quickly and affordably. That is actually the silver bullet. Until that happens, I don’t know why they’re wasting everyone’s time with this crap.

  12. And in other news Abbott and Co have nearly lost the unlosable election. Pensioners, Disadvantage, Unemployed, Greens, Gays, Pro Labor now all have LNP in their sites… Thanks to Hockey, it’s a win win for the NBN. :)

  13. No AFACT, this trial shows you can’t hold the ISPs responsible for their users, just like you can’t hold councils liable for drug-trafficers on their roads.

    In the US, Netflix traffic now outstrips BitTorrent, why not in Australia? Because we can’t get Netflix in Australia, why don’t AFACT focus on getting us Netflix?

    • An industry built on scarcity doesn’t know how to function in the 21st century. That’s it. There’s no other reason.

      If they can’t cope in a world of information abundance, and collapse as a direct result of their own resistance, that’s their problem. Not iiNet’s, not the government’s, and certainly not consumers’.

  14. Can they demand action? Yes. Will they get it? Maybe. These secret talks have me concerned.

  15. The Judges recognise the significant rate of copyright infringement online and point to the fact that over half the usage of iiNet’s internet service by its customers (measured by volume) was represented by Bit Torrent file sharing which was known to be used for infringing activities,” Gane added

    Did i miss where they somehow proved this? or is it still april 1st?

    • “Did i miss where they somehow proved this? or is it still april 1st?”
      It would be much easier if the judge just lets them argue that anyone using the internet is clearly a pirate. Save so much time.

    • Guest wrote:
      ‘The Judges recognise the significant rate of copyright infringement online and point to the fact that over half the usage of iiNet’s internet service by its customers (measured by volume) was represented by Bit Torrent file sharing which was known to be used for infringing activities,” Gane added.’

      Gane deliberately twisted the truth – so yes he is lying.

      Michael Malone admitted during the first trial than more than half of iiNet’s traffic was via Bit Torrent.

      Obviously some of this is for infringing activities (it is impossible to know what percentage that is) – however Gane deliberately uses ambiguous wording in his sentence to imply that it was all infringing activities.

      Gane is a full tosser.

  16. Here is another FACT you loose Afact , what a bunch of sore losers it’s not enough to make a fair profit you want to make a killing with every sale, go back and squirm into the whole you crawled out of.

  17. Spin it however you want AFACT. It is a FACT that you are multi time losers in this matter. Take that statement as you will.

  18. Ain’t it great living in a democracy?

    If you have enough money you can simply bribe the government to change any law you find inconvenient never mind that it’s not what the people who vote in the government want,.

    Why even have courts or elections when the opinions of the people and the courts are worthless in end?

  19. I just spoke with Neil Gale on BBC World Service, and I have to say he did a great job to stick to the exact same lines from his earlier Television appearance.

    Afact say that Australian Copywrite laws are out of touch with technology, Pirate Party Australia posit that international media corporations are out of touch with not only technology but also social and economical changes throughout the world.

  20. So in summary:

    AFACT sues IINet

    AFACT Loses

    AFACT Appeals

    AFACT Loses

    AFACT demands the government change the laws so that AFACT will in effect now win

    Screw you AFACT and the American interests you represent. You had a chew on someone with enough money to not allow you to buy a decision. You didn’t have the balls to take on Telstra and deliberately aimed for a then smaller ISP just to bully your way into a Legal precedence.

    Now piss off back to Sepposlovakia! You’re done!

    • Wrong Dread, you forgot an appeal, it should read:

      AFACT sues IINet

      AFACT Loses (Federal Court, 2010)

      AFACT Appeals

      AFACT Loses (Federal Court – Full Bench, 2011)

      AFACT Appeals

      AFACT Loses (High Court, 2012)

      AFACT demands the government change the laws so that AFACT will in effect now win

      • If the three strikes rule should apply anywhere, it should apply here.

        Hey, AFACT, strike three – you’re out!

  21. Well given the form of the responsibility abrogating government and the up til now blatant excision of anyone other than the corporate gouging industry trolls like Gane and a couple of isps from any (secret) discussions, what are the odds that this cabal of idiots lumbers us with a joke of a policy rather than any sensible one?

  22. so the law has no meaning for them, they want it changed so they get their own way?

    screw them – oh wait, i think the high court just did.

  23. I’m so tired of corporations demanding governments change their laws. The law should be for the people, corporations are not people.

    Perhaps a people’s government could actually enact laws people want, and not what a corporation wants.

    How about the government actually forces content providers to distribute immediately, at a fair price; in return / fair use clause in return for some better regulation? Instead all I see is a poorer outcome where AFACT and others get a 3 strikes law or similar.

    I’m definately not against companies making a dollar, but AFACT has to realise that any other solution will drive people to secure ways of distributing files, they can never win, not unless laws end up changing so much, we end up with an Internet equivalent to a giant version of Apple’s App store with protocols changed or restricted. Which is what they want.

  24. If these laws are ever passed the NBN will never recoup the cash required to make it profitable. 50% of revenues going to bittorrent. That would mean that we wont need the quotas were using now. Half of our nations broadband usage down the drain the people wont need the NBN.

    The government want to have a healthy industry make the copyright holders create a sustainable business model that caters to the average person. Its the digital age they need to get with the times..

    Heres a thought get the megaupload founder to start a site that lets you download the latest episodes from the US etc with ads or you pay a monthly fee to watch what you want.

    This allows them to get higher ratings in a short time and would most likely save shows that dont rate well from being axed;

    And i dont mean $100 a month something anybody who wants the service can afford.

    A majority of the people who download cant afford to buy everything they download so technically there not losing revenue.

    Mass market to millions at cheap rates and a little adds up to a lot and your making millions in revenue. People will still buy the box set if they think the product is worth buying.

    If you want to compare outdated copyright laws with the current digital age you need to change the way you do business.

    There was never this much content available 2 years ago.
    People cant afford to buy all the content thats being produced.
    Copyright holders might feel like there making more but in fact they will lose viewers i wont be waiting for a show to come on tv and i certainly wont be paying for the amount of content i use now. I cant aford to.

    Although copyright holder think they will win not as many people will watch their programing. I dont have the time to wait until 730 on a thur night to watch a show. I need flexibility.

    Copyright holders may win but other industry’s are going to lose.

    We will have less competition because revenues for broadband providers will be cut dramatically. Only the big will survive.

    Its selfish corporate greed and it can be fixed by using smart corporate strategy. The right outcome the customer, copyright holders and effected business wont lose. And old business models and businesses who run off that business model will no longer exist.

    • The government is a little retarded when it comes to foresight and the internet in general.
      First they announced the NBN, then they want to put a filter on the internet

      (basically like running 90mm water pipe down the street and though your house but it goes though your old 9mm water meter)

  25. Full speed ahead. you know its funny I have rarely downloaded anything of much, however. I am going to now lol I am going to delete it.. I just hate AFACT and all who sail in her.

    Seriously, You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go


  26. Yes the business model is flawed and needs updating etc etc but surely that is a long way from being a justifiable excuse for just copying the material? I mean we’re not talking about a necessity here, this isn’t a “he stole the loaf of bread to feed his family” kind of deal.

    Why so many commentators here jump to the whole “we wouldn’t do it if you sold it to us cheaper” whine seems ludicrous to me.

    If its too expensive, or delayed from the US, or not in the format I want, etc etc then simply don’t watch it. If you are in the majority and enough people do that hen things will change. But it’s not an excuse for just taking a copy.

  27. As an ISP. i don’t condone piracy, additionally as i grew up and now my family owns a video store (a dieing industry)

    While i welcome the decision thats its ‘not’ the ISP’s fault that people download illegal torrents i do think something needs to be done. and my all parties.

    now although people say “Charge consumers reasonable prices, and we will pay for it”
    thats a little bit of a lie deep down in person who said it. movie content anyhow (not games) the prices have dropped to buy/own/rent a DVD by 90% . 12 years ago it cost a video store $150 per copy of a movie to buy to rent out. now its $19.95 for everyone.

    As a ISP, i think that AFACT is dreaming if they think that we should fit the bill to police their problems. sure most ISP’s would be willing to help providing we work within the privacy act we are strictly held to, and we get compensated for our time and expenses. Why should ISP’s be the only business in the world that needs to pay for another business’s problem.

    as for AFACT and the NBN i wish them luck. NBN = access to streaming torrents for 97% of the country. lol.

    • In your bottom line, I think you’ve hit on a very important point here NuSkope. The NBN creates a country wide potential for streaming, and if AFACT and friends dont change their models they will get left behind. What is the alternative? Sue every Aussie simply for using whats been gifted to them?

      The decision is the right one – you cant hold the post office accountable for illegal mail just because they deliver it, so why would an ISP be any different?

      That doesnt make piracy right, it just means AFACT has to find some other way. Personally I’m with everyone else – give legal alternatives like Hulu and Netflix, and piracy will drop. You”ll never totally get rid of it, but you can make it tolerable.

      And before anyone jumps up and down screaming that 0% is the only tolerable figure, thats never been the case. Before TV, people snuck into cinemas and denied profits that way, so its not a new issue for the industry. Like it or not, there is always going to be a portion of the market that looks for the free option.

      Right now, the market model is outdated and overpriced, and with the NBN clearly providing avenues that AFACT wont like, its up to them to adapt. Tap into the market and give people what they want, and AFACT will make money, rather than waste it on lost causes.

  28. One word. Netflix.

    When there is a product that provides a similar level of content for a similar price in Australia piracy will drop massively. Sure the kiddies will still download, but the great bulk of the downloading middle class will stop.

    Oh and before someone says Quickflix, that is a complete joke in its present state. Based on price and content.

    • I agree , I pay $5 a month for a service to give me the ability to pay $15 a month to Netflix in Aus , it’s more content than I can handle and I’m more than happy to pay it.
      If the greedy f#%#s could only work that out, I’d be happy to $20 a month for Netflix and I’m sure so would 1000’s of others in Aus.

  29. I’ve tried buying eBooks, but none of the content I want is available, or if it is, it is extremely expensive and only available through physical retailers here in Australia! What’s up with that? Don’t the publishers want my money?

    If the book publishing industry made their content available online directly themselves, for a reasonable price, I would buy it. But they don’t, so I can’t.

    Similarly with other forms of media. In the internet age, why do we need multiple layers of distribution to get content to the consumers? I buy most of my services and many of my products now directly from the source online – why not my content too?

    • Some book publishers do make their content available directly and others are following I would put the book publishing industry(the one that was most tied physical media) ahead of its rivals industries in the movie/TV/Music in making its content available. These has been pushed mostly by more specialist publishers such baen and o’riely infact baen included electronic copies of some of their booking(on disc mind you) with the physical books in the late 90s IIRC.

      The main issue is that distribution, publishing, funding and all the non-creative side of the TV/Movie industry at the top end of town is so inbred that they don’t want to try new things that might affect the revenue of parts of the industry for the fear of souring future deals. A producer who might bypass publishers for a smaller side project risks getting blackballed by publishers for his higher budget projects.

  30. “Today’s decision by the High Court exposes the failure of copyright law to keep pace with the online environment ” — or in other words, “Today’s decision by the High Court exposes the failure of AFACT to keep pace with the online environment “

  31. Overall I believe Copyright works OK as is, there’s no compelling reason to change it. I accept that technology makes enforcement difficult, but then again technology also offers better channels for content distribution, and easier mechanisms for payment — they lose a bit they gain a bit, but certainly there’s no evidence that we are struggling to find money to pay actors, musicians, etc.

    Politicians are only interested in two questions: Can they buy votes? How about campaign donations?

    In terms of votes, probably any obvious support for AFACT by either party would be a vote loser, which is no doubt why all talks are held in secret, because they don’t want the voters to see how bad they are being sold out. I have no doubt that a Liberal/National government would be equally happy to continue the same process, I still remember Mark Vaile’s pathetic negotiations on a “Free Trade (TM)” agreement *shudder*.

    In terms of campaign donations, a quick search at “” shows the following:

    2007/08: Village Roadshow Limited, $200k to the ALP, $150k to the Liberals
    2009/10: Village Roadshow Limited, $30k to the ALP
    2010/11: Village Roadshow Limited, $200k to the ALP, $140k to the Liberals

    Would you vote for a party that takes money in return for betraying citizen’s interests? Well, with preference voting, you get down to the last two squares, you will have to be voting for one or the other, huh?

    Ha! Ha! Liberty and Democracy.

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