AFACT to take iiNet case to high court

The Australian Federation Against Copyright Theft (AFACT) announced that it will continue its legal battle against internet service provider (ISP) iiNet over copyright infringement, seeking leave to appeal its case to the High Court.

The court case started back in November 2008 when 34 parties represented by AFACT, including Australian and US film companies and the Seven Network, lodged a high-profile copyright infringement and internet content piracy case against iiNet. The hearing of the case commenced in the Federal Court a year later, in October 2009. iiNet won that case, with Justice Dennis Cowdroy ruling that iiNet had not authorised its customers to infringe on copyright.

In February, two judges of the Federal Court dismissed an appeal by AFACT. However, AFACT today announced it was ready to appeal to the High Court.

AFACT executive director Neil Gane spoke on behalf of the film companies he represented, saying that they would try to overturn the Federal Court's ruling.

"The Full Federal Court unanimously found that iiNet had the power to prevent the infringements of its users from occurring and that there were reasonable steps it could have taken, including issuing warnings," he said.

At the last appeal, two out of three judges of the Federal Court said iiNet did not authorise the infringements; but Gane said the judges had been mistaken. "Two judges of the Full Court went on to find that iiNet had not authorised the infringements of its users and that is what we are appealing," Gane said. "We say they did not apply the legal test for authorisation correctly."

AFACT said that when the film companies launched their legal action against the ISP in 2008, it had started a five-month investigation, the results of which were being sent on a weekly basis to iiNet with notifications of infringements happening on its network.

"In response to the Full Court's conclusion that iiNet did not have sufficient knowledge of the infringements to authorise them, the film companies will argue that iiNet did have sufficient knowledge, that it admitted the acts of infringement and that its CEO admitted on the stand that the evidence was 'compelling'," he said.