Will the iiNet case get to the high court?

Will the iiNet case get to the high court?

Summary: The Australian Federation Against Copyright Theft (AFACT) has rejected suggestions that it might have a tough time convincing the High Court to take on an appeal of the high-profile case against internet service provider (ISP) iiNet.


The Australian Federation Against Copyright Theft (AFACT) has rejected suggestions that it might have a tough time convincing the High Court to take on an appeal of the high-profile case against internet service provider (ISP) iiNet.


(My trusty gavel image by Brian Turner, CC2.0)

The federation argues that iiNet has failed to act on piracy carried out using its networks and should be liable. The bid has been twice thrown out of the Federal Court, including by the Full Bench, and can now only be pursued in the High Court.

AFACT must pitch the case to the High Court by 24 March this year, playing on the significance of the claims at stake. Law experts have said that AFACT may not even need to go to the High Court, because the judgement set out remedies for it to gain ISP cooperation in its fight against piracy. However, AFACT has not ruled out taking the fight further.

Yet an appeal might be a tough sell, according to some experts.

Mallesons Stephen Jaques partner John Swinson said it is hard to ascertain if the High Court would accept the appeal, but noted AFACT will need to come up with "good reasons" to convince time-poor judges who only accept a small percentage of cases.

"They haven't been able to convince four judges and now they have to convince three High Court judges, that's a way to look at it," Swinson said.

RMIT University general counsel John Lambrick said AFACT may find an appeal difficult since it had lost the two prior cases.

"Often it's hard to get special leave to appeal when you've lost a first instance and then on appeal to the Federal Court," Lambrick said.

Yet AFACT executive director Neil Gane rejected the claims the High Court would consider both judgements in agreement if it were to appeal.

"All three judges unanimously disagreed [with the initial finding] that the 112e facilities defence would not have protected iiNet from a finding of authorisation," Gane said.

Gane did not say if the federation will appeal. If it does, then iiNet will be able to submit elements of the judgement it wishes to have re-examined. Given lawyers' opinions that ISPs may be liable in the future for piracy on their networks if AFACT changes its notifications, the provider could dispute some sections of the judgement.

Clayton Utz partner John Fairbarn said the High Court would consider the law of authorisation, which has divided the trial and appellant judges, when considering whether to take the case.

"[Authorisation] is quite an important area of copyright law. The High Court hasn't considered it in a long time and given the changes in technology and the way this law is being applied, it's a fairly important issue," Fairbarn said.

"The fact that you've got judgements all reaching slightly different conclusion would indicate that there's a significant degree of uncertainty in this area."

Topics: Legal, Government AU, Telcos

Darren Pauli

About Darren Pauli

Darren Pauli has been writing about technology for almost five years, he covers a gamut of news with a special focus on security, keeping readers informed about the world of cyber criminals and the safety measures needed to thwart them.

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  • Some Introductory Excerpts:


    'Hollywood Accounting' Losing In The Courts

    from the math-is-hard dept

    If you follow the entertainment business at all, you're probably well aware of "Hollywood accounting," whereby very, very, very few entertainment products are technically "profitable," even as they earn studios millions of dollars. A couple months ago, the Planet Money folks did a great episode explaining how this works in very simple terms. The really, really, really simplified version is that Hollywood sets up a separate corporation for each movie with the intent that this corporation will take on losses. The studio then charges the "film corporation" a huge fee (which creates a large part of the "expense" that leads to the loss). The end result is that the studio still rakes in the cash, but for accounting purposes the film is a money "loser" -- which matters quite a bit for anyone who is supposed to get a cut of any profits.

    For example, a bunch of you sent in the example of how Harry Potter and the Order of the Phoenix, under "Hollywood accounting," ended up with a $167 million "loss," despite taking in $938 million in revenue.



    Hollywood Accounting and Average Joe

    p2pnet view MPAA:- We’re finally making progress on the real criminals of entertainment piracy. The MPAA ia losing court case after court case using their infamous ‘Hollywood Accounting‘, and losing consistently, primarily because jury members are finally realizing how sleazy these members of the MPAA really are.

    Honestly, how does New Line Cinema think it can gross nine Billion, that’s Billion, on the Lord of the Rings Trilogy worldwide, and then try and weasel out of paying J.R. Tolkien estate for the idea, and Peter Jackson for directing the movie, claiming it ‘lost’ 120 Million? This is probably the reason behind the delay of creating ‘The Hobbit’ movie. If I were Peter, I wouldn’t direct any movie until I got paid for the previous one.

    Hollywood Accounting is where the MPAA (insert big **** here) create a corporation for each movie, ie Lord of the Rings, LLC, and then purposely use that entity to numerically absorb money, and to reflect a loss by creatively making up numbers for advertisement, distribution, additional licensing and/or copyrights for the particular movie. They illegally and grossly bloat these numbers as ‘expenses’ for the Studio to allegedly ‘pay’ from the gross of the movie itself.

    After ‘New Line Cinemas’ paid expenses to ‘Lord of the Rings, LLC’, there apparently just wasn’t enough money left to pay the director, or the estate of J.R. Tolkien, who owns the copyrights on the idea, and wrote the books. This ensures that stakeholders in the movie itself get the ’steak’ of the profits, whereas the entitled entities, like the writer, producer, rights holder, etc, are left with the ‘peas’, if that. Typically they only get to lick the plate after the fatcat **** at the MPAA get their ill-gotten gains first.



    The End of Hollywood Accounting?

    Will 1+1 someday = 2?

    The WGA, the Teamsters and California State Senator Sheila Kuehl have just announced the introduction of the "Fair Market Value Bill." The bill seeks to prevent studios from selling programming to sister companies for below market value. This particular strain of Hollywood accounting is designed to shift profits away from the studios (where they must be shared with talent and producers and serve as a basis for pension and health contributions) to networks, where they may be enjoyed without the pesky need to pay one's "partners."

    Jahm Mittt
  • AFACT - they are so crooked even their bogus PR campaign is a lie.

    http://torrentfreak.com/tech-news-sites-tout-misleading-bittorrent-piracy-study-100724/ [torrentfreak.com]

    http://www.techdirt.com/articles/20100708/02510310122.shtml [techdirt.com]

    http://www.latimes.com/business/la-fi-ct-disney-20100708,0,4051564.story [latimes.com]
    Jahm Mittt
  • AFACT members in trouble for price fixing?


    A home electronics retail store has filed a class-action lawsuit against Sony Corp., Samsung Electronics Co. Ltd., Toshiba Corp., LG Electronics Inc., Hitachi Ltd. and several subsidiaries, accusing the electronics manufacturers of colluding to fix prices in the U.S. optical disc drive (ODD) market.


    MDL Docket No. 1361 read:

    “The Plaintiffs have alleged in two separate amended complaints that the Defendants conspired to illegally fix and control the pricing of Music Products sold to consumers through Defendant Distributors’ adoption and utilization of Minimum Advertised Price (MAP) programs in violation of the Sherman Act, state antitrust and unfair competition and/or consumer protection laws. The Plaintiffs have further alleged that as a result of the conspiracy residents of the Plaintiff States and members of the Plaintiff Settlement Class have been injured by paying more for Music Products than they would have paid in the absence of the illegal conduct. The Defendants have denied and continue to deny each and all of the claims and contentions alleged by the Plaintiffs and any violation of law. The Court has not made any determination as to the merits of any of the claims or defenses of the parties to this Litigation.”

    In the hot seat were:

    * LABELS: Capitol Records, Inc d/b/a EMI Music Distribution, Virgin Records America, Inc, and Priority Records LLC; Time Warner, Inc, Warner-Elektra-Atlantic Corp, WEA, Inc, Warner Music Group, Inc, Warner Bros Records, Inc, Atlantic Recording Corporation, Elektra Entertainment Group, Inc, and Rhino Entertainment Company; Universal Music & Video Distribution Corporation, Universal Music Group, Inc, and UMG Recordings, Inc; Bertelsmann Music Group, Inc and BMG Music; and, Sony Music Entertainment Inc.

    * RETAILERS: MTS, Inc d/b/a Tower Records, Musicland Stores Corp, and Trans World Entertainment Corp.
    Jahm Mittt
  • Lol as apple already stated its big media that is to blame as they want to charge different countries more & not just because of tax, this is one reason for regional DRM its not just because of ratings bodies as they would like to make you believe.


    FTA: EU blames record labels, not Apple, for iTunes restrictions

    The European Commission has said that it sees the record companies - not Apple - as being responsible for consumers' inability to buy tracks at the lowest prices by shopping across national borders.

    'Our current view is that this is an arrangement which is imposed on Apple by the major record companies and we do not see a justification for it,' Commission spokesman Jonathan Todd told reporters.

    The world's major record companies are Vivendi's Universal Music Group, Sony BMG Music Entertainment, EMI Group and Warner Music Group.
    Jahm Mittt
  • RIAA Claims Ownership of All Artist Royalties For Internet Radio


    "With the furor over the impending rate hike for Internet radio stations, wouldn't a good solution be for streaming internet stations to simply not play RIAA-affiliated labels' music and focus on independent artists? Sounds good, except that the RIAA's affiliate organization SoundExchange claims it has the right to collect royalties for any artist, no matter if they have signed with an RIAA label or not. 'SoundExchange (the RIAA) considers any digital performance of a song as falling under their compulsory license. If any artist records a song, SoundExchange has the right to collect royalties for its performance on Internet radio. Artists can offer to download their music for free, but they cannot offer their songs to Internet radio for free ... So how it works is that SoundExchange collects money through compulsory royalties from Webcasters and holds onto the money. If a label or artist wants their share of the money, they must become a member of SoundExchange and pay a fee to collect their royalties.'"

    Jahm Mittt