AFACT wins iiNet High Court hearing

The High Court of Australia has granted the Australian Federation Against Copyright Theft (AFACT) special leave to appeal the Federal Court ruling of its long-running piracy case against iiNet.

In 2008, AFACT, a consortium of 34 film and television studios, took iiNet to court, seeking a ruling that the internet service provider (ISP) had authorised its users to infringe copyright by failing to act on infringement notices provided by the federation. iiNet won the case and a subsequent appeal; however, experts have said that the appeal judgment laid out a framework for AFACT to compel ISPs to act on infringement notices.

In a packed court room in Sydney today, after hearing both sides plead their case, the High Court granted special leave to allow AFACT to present its argument at a High Court hearing in Canberra later this year, in the hopes of having the previous judges' ruling overturned.

AFACT had appealed the ruling of the Full Bench of the Federal Court on six grounds, but AFACT will only be heard on five of those grounds. The six grounds were:

1. The Full Court had erred in holding that iiNet had not authorised user copyright infringements;
2. The Full Court had erred by failing to apply the principles stated in the 1975 Moorhouse copyright ruling, which found that the University of New South Wales had authorised copyright infringement of books in its library by providing a photocopier to let students make copies;
3. Given the facts of the case, the Full Court should have found that iiNet authorised copyright infringement;
4. The Federal Court judges erred in considering whether iiNet had sufficient knowledge of copyright infringement;
5. Justice Arthur Emmett erred in his judgment that AFACT would have to provide iiNet with "unequivocal and cogent evidence" of copyright infringement before it could act on it; and
6. That Justice John Nicholas had erred in holding that iiNet's conduct did not constitute "countenancing" of copyright infringement in accordance with the Moorhouse case.

Ground 3 will not be heard, as the court ruled that this ground was addressed by the other grounds of the appeal.

The case is expected to run for over two days.

With leave granted, AFACT must now file a notice of appeal within 14 days. iiNet then has 14 days to serve a notice of cross-appeal. A hearing date will be set after both parties are given time to make written submissions. According to iiNet, the earliest the case could be heard would be between 25 October and 3 November 2011, with the next available hearing between 29 November and 8 December.

iiNet CEO Michael Malone said in a statement that given the significance of the issues involved in the case, he was not surprised that the High Court had decided to review it, and reiterated earlier statements that iiNet was committed to developing an industry solution to deal with copyright infringement.

"I know the internet industry is eager to work with the film industry and copyright holders to develop a workable solution," he said.

In a statement, AFACT welcomed the High Court's decision and said that it looked forward to presenting its arguments to the High Court later this year. In the meantime, AFACT executive director Neil Gane told ZDNet Australia that AFACT will continue discussions with ISPs to address copyright infringement issues in parallel with its legal strategy.

"We've always been open to meaningful negotiations ... with ISPs, as a way to discuss solutions to prevent copyright theft online, and we're more than happy to continue to have any negotiations with the decision of the full Federal Court as the framework to further these discussions."

Updated at 1:03pm 12 August 2011: Added detail on grounds of the appeal and comments from Neil Gane.