Malone: Appeal won't stop piracy

iiNet managing director Michael Malone has said he's disappointed that the Australian Federation Against Copyright Theft (AFACT) has decided to appeal the Federal Court's decision in the recent copyright court case.

Michael Malone
(Credit: iiNet)

"It is more than disappointing and frustrating that the studios have chosen this unproductive path," Malone said. "This legal case has not stopped one illegal download and further legal appeals will not stop piracy."

AFACT today lodged a notice of appeal in the Federal Court, which has included its 15 grounds for appeal, expected to 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 Dennis Cowdroy, who had made the decision earlier this month in iiNet's favour, will not be involved in the appeal process; however, he will concurrently be hearing AFACT's challenge to his decision on costs.

Cowdroy ordered that AFACT foot iiNet's entire legal bill, though AFACT this morning lodged its notice of motion at the Federal Court over costs. In broad terms, AFACT is challenging costs it faces on issues that were not decided in iiNet's favour.

Cowdroy today ordered that both AFACT and iiNet serve a statement of costs of the proceedings and evidence to support their arguments by 12 March. The matter will be heard on 4 May 2010.

Malone himself was frustrated at AFACT's attempt to claw back costs, earlier this week telling ZDNet.com.au: "We didn't ask to be sued. They came to us and sued us and they lost, so I don't see why we should be paying any of their legal expenses."

The Internet Industry Association (IIA) meanwhile has also requested costs it faced as a result of its involvement in the case be decided upon by Cowdroy. AFACT and the IIA will need to have lodged their arguments with Cowdroy by 17 and 19 March respectively.

Malone has today again positioned copyright owners' challenge as a marketing one, and not legal, urging the studios behind the challenge to make content more widely available to consumers.

"The studios themselves admitted during the court hearings that making content freely and cheaply available online was an effective way to combat piracy," he said.

"People are crying out to access the studios' materials, so much so some are prepared to steal it."

Malone reiterated comments that US streaming service Hulu and iiNet's own content available under its Freezone service are the business models of the future. "New approaches and models, like Hulu and Freezone, are the most effective solution to the problem," Malone said.

There has been some excitement that Hulu may soon be available in Australia; however, its availability would still require across-the-board agreements to be struck between local television networks that own distribution rights in Australia in order to launch a similar service to the US. Hulu there has required agreements between Fox, NBC Universal Paramount, Warner Bros and Disney.

While some of AFACT's members, including the prime co-applicant in the copyright battle, Village Roadshow, have struck deals with iiNet to distribute content under the ISP's Freezone service, AFACT remains focussed on the issue of copyright breach.

"The court 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," said AFACT's executive director Neil Gane. "In line with previous case law, this would have amounted to authorisation of copyright infringement."