At the close of the first day of the Australian Federation Against Copyright Theft's (AFACT) appeal against the iiNet copyright trial decision earlier this year, AFACT barrister David Catterns criticised the way Justice Cowdroy had gone about ruling the case.
At the conclusion of the original lawsuit AFACT brought against iiNet, Justice Cowdroy firstly ruled that the internet service provider (ISP) had not authorised its users' infringements; secondly, it could not be expected to act to prevent the breaches under the Copyright Act; and finally, that iiNet had a policy in place to deal with customers infringing on copyright, but did not need to apply it in this case.
Catterns said that the order Cowdroy applied in this ruling was incorrect. He stated that "the appropriate way to deal with it" would have been to first identify whether iiNet was a facilitator in supplying the means (the internet connection) for its users to breach copyright, then determine how this sits in the section of the Copyright Act in regards to iiNet's ability to prevent the breaches.
AFACT's barrister then said that he believed the judge should have looked at whether iiNet had knowledge of these breaches, but did not act to prevent them, and whether that — when all was taken into account — constituted authorising copyright infringement.
The barrister said he believed there had been a "considerable number of errors" by Justice Cowdroy in the ruling. He said this included a "blind alley" judgement where Cowdroy ruled that iiNet was no more responsible than suppliers of electricity and stated that AFACT should have gone after the makers of the BitTorrent software.
Catterns closed the day's proceedings by stating that the Copyright Act is now "three times bigger than it was in 1968". He said that AFACT was not seeking to extend the Copyright Act further but believed that if the law had been properly applied to the case "it should have shown authorisation".
In the original case, iiNet argued that it was simply providing a service to its customers and had no power to act on infringements without a court order. iiNet has stated that to do so would be a breach of its customers' privacy.
Lawyers for iiNet will lay out their side of the argument later this week.