iiNet has lodged a "notice of contention" with the Federal Court in the hope of clarifying two of its defences that were rejected by Federal Court Judge Dennis Cowdroy in its recent legal battle against the Australian Federation Against Copyright Theft (AFACT).
iiNet managing director Michael Malone
Even though iiNet won the recent copyright court case against AFACT, Justice Cowdroy had rejected two of its key defences. iiNet is now questioning Cowdroy's findings in the hope of shoring up its position in future.
"We go into this latest legal round anticipating we will come out in an even stronger position than when we won last month," iiNet chief Michael Malone said in a statement.
The first issue iiNet is contending relates to Section 112E of the Copyright Act 1968, which states that a carriage service provider that "facilitates ... a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities".
Cowdroy had said in his decision that he was bound to rule in line with the 2006 case, Universal Music Australia versus Cooper copyright case, in which the Full Court — on appeal — decided a critical factor was whether the service provider had knowledge of copyright breaches occurring on its facilities.
The judge found that iiNet did have knowledge that infringements were occurring on its facilities, therefore the protections under 112E "ceased to have operation".
Cowdroy's overarching decision was that iiNet had not authorised its customers' infringements, which meant in terms of his final decision the point was moot. Yet it may come into play in the upcoming appeal process in which the legal teams of both sides will contest iiNet's alleged authorisation of its customers' breaches.
The second point of contention was Cowdroy's decision that privacy provisions under the Telecommunications Act did not prevent iiNet from using its customer information to assist AFACT's investigations. The question here was whether iiNet had the power to prevent infringements on its network and whether it took "reasonable" steps to prevent this from occurring.
iiNet's notice of contention follows AFACT last month contesting Cowdroy's decision to order the federation to pay full court costs. AFACT has also appealed almost the entirety of Cowdroy's decisions against it in the initial hearing.
AFACT said the internet service provider was shoring up its defences because if it was found to have authorised copyright infringements in the appeal, it would be liable. .
"The court already found large scale copyright infringements, that iiNet knew they were occurring, that iiNet had the contractual and technical capacity to stop them and iiNet did nothing about them. In line with previous case law, this would have amounted to authorisation of copyright infringement," AFACT spokesperson Rebecca Tabakoff said.