commentary The third afternoon of the Australian Federation Against Copyright Theft (AFACT) appeal against the iiNet copyright case verdict was filled with technical legal discussions of words such as "authorise", "public" and "substantial part", giving observers time to ponder "why are we here?"
The obvious answer is that AFACT isn't happy that the internet service provider (ISP) won the original federal court case. This case will set many important precedents and gives significant guidance for how the industry should operate in the future. This fact was acknowledged by Justice Dennis Cowdroy in his original lengthy ruling.
This is why iiNet's barrister Richard Cobden spent yesterday morning arguing that iiNet's general response to AFACT infringement notices was reasonable. It's why his colleague Richard Lancaster took over mid-afternoon to argue the meaning of words and to launch a detailed discussion of the "safe harbour" provisions of the Copyright Act that limit an ISP's liability.
But the details may undo attempts to set precedents. Much of this case relates to the specifics of AFACT's notification procedures and the specifics of iiNet's policies and response. As appeals judge Justice Arthur Emmett noted yesterday, "[there's still] the opportunity for [AFACT's lead barrister] Mr Catterns to start again with a different set of information".
And that benefits no one. "Is it just a matter of who bears the cost of dealing with all this?" Justice Emmett asked. "It just seems to me that out there is a commercial solution."
It's easy to over-simplify this case into good guys versus bad guys. Greedy movie corporations versus the battler ISP protecting its customers. Or, from the other side, the stubborn ISP refusing to help investigate illegal activity. And a legal case makes a dramatic story.
But in the battle against another illegal activity, the distribution of child abuse material, compromises have been reached. Why not in the case of copyright violation?
The appeals proceedings continues in the Federal Court today.