The Australian Federation Against Copyright Theft has today slammed Federal Court Judge Dennis Cowdroy's understanding of copyright law in its appeal against his decision in iiNet's favour.
AFACT's nine-page notice of appeal, penned by its solicitor, Gilbert and Tobin partner, Michael Williams, outlines key areas of copyright law it believes Justice Cowdroy got wrong. It has objected to Cowdroy's treatment of authorisation, infringement by iiNet users, safe harbour provisions and evidence heard during the trial.
At its heart is Cowdroy's application of the term authorisation under copyright law, and his decision that BitTorrent was the means by which infringements had occurred.
AFACT will contest that BitTorrent was a "necessary precondition" to infringement, but that iiNet's carriage service was the key. The argument flows on to iiNet's power to prevent breaches occurring, according to the notice.
While iiNet was powerless to stop BitTorrent users, as Justice Cowdroy had found, AFACT contends it did have the power to prevent breaches that occurred over its network by suspending or terminating customer accounts.
The federation has also objected to Cowdroy not seeing AFACT's infringement notifications to iiNet as sufficient grounds for its knowledge that breaches were occurring, as well as Cowdroy's finding that iiNet's inaction did not amount to sanctioning its customer's copyright breaches.
Cowdroy's assessment of BitTorrent's manner of operation was also viewed as incorrect, according to AFACT's notice. Cowdroy was wrong, it said, in finding that a file accessed several times by third-party users amounted to a single, continuous act. AFACT contends that each time a computer was connected to the internet, thereby making a file available, this amounted to a breach.
"The primary judge erred by failing to act on his own findings, which ought to have led to a conclusion that there were numerous and repeated acts of infringement by users of iiNet's internet services," the notice states.
AFACT has slammed the decision as making a mockery of Australia's Safe Harbour rules, which it imported to Australia under a 2006 US Fair Trade Agreement.
The federation's appeal will be heard by three Federal Court judges at some stage this year. If AFACT wins that appeal the matter may be appealed by iiNet at the High Court.
Justice Cowdroy will not be involved in the appeal process; however, he will concurrently be hearing AFACT's challenge to his decision on costs.