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 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."