After over four months of deliberation, the High Court is set to hand down its judgment for the long-running copyright infringement case between the Australian Federation Against Copyright Theft (AFACT) and iiNet next Friday.
The High Court has today announced that the judgment will be handed down at 10am AEST on Friday, 20 April. iiNet's CEO Michael Malone and chief regulatory officer Steve Dalby will hold a media conference at 1pm on that day.
In November 2008, 34 film studios, including Village Roadshow, Warner Bros and Universal, took internet service provider (ISP) iiNet to court, alleging that it had authorised its customers to infringe copyright on 86 titles through sharing via BitTorrent services.
AFACT, had used the services of Dtecnet to discover users sharing copyrighted content through BitTorrent, and traced internet protocol (IP) addresses back to iiNet. The company then issued thousands of notices to iiNet, informing the ISP of the infringement. At the start of the case, AFACT alleged that because iiNet had ignored thousands of infringement notices provided over a five-month period, and had not taken reasonable steps to stop its customers' copyright infringement, the company was authorising that infringement.
In 2010, Justice Dennis Cowdroy dismissed the case, ruling that "the mere provision of access to the internet is not an authorisation of infringement", and that the notification scheme proposed by AFACT, which included the possibility of account suspension or termination for repeat infringers, was not reasonable.
AFACT appealed the judgment, but again lost before the full bench of the Federal Court when two of the three judges sided with iiNet in early 2011.
Experts said at the time that in the ruling, Emmett had laid the groundwork for AFACT to re-evaluate its methods of issuing infringement notices to ISPs in such a way that the providers would then be compelled to act on them, or be considered to have authorised infringement. According to Emmett, if iiNet was provided with "unequivocal and cogent evidence of the alleged primary acts of infringement by use of the iiNet service in question" and information on how that evidence was gathered in order for iiNet to verify the claims, and still didn't act, then the provider could be found to have authorised infringement.
AFACT this time appealed to the High Court, and the case was heard before Chief Justice Robert French and Justices William Gummow, Kenneth Hayne, Susan Crennan and Susan Kiefel over three days at the beginning of December 2011.
The case came down to an argument over control — that of an ISP over its users, and the control that a copyright holder has over his or her works.
No matter which side the High Court's judgment ultimately comes down on, it will lead to changes in the way that ISPs handle their users' copyright infringement through technology such as BitTorrent. While the High Court deliberated on the case, the attorney-general's department has held a number of secret meetings between ISPs and copyright holders, looking to find a solution to deal with copyright infringement. The government has stated that it favours an industry-led solution, but the proposed model put up by the Internet Industry Association (IIA) has been met with opposition from the copyright holders, who are against a system that forces them to pay a fee for ISPs to investigate claims of user piracy.