Lawyer and CSP Central contributor Peter Moon said that he believed the iiNet judgement was fair and that the Australian Federation Against Copyright Theft would likely have to appeal before pushing legislation changes in the government.
"First and foremost, we say that iiNet deserves its day in the sun. It fought fairly. It answered a vigorous and well-resourced case. And it won comprehensively," Moon said to ZDNet.com.au on behalf of CSP Central, a legal and regulatory resource for communications issues.
"It would be churlish not to acknowledge that fair legal process ran its course and iiNet took the points. No idea if Malone is a drinking man, but he's entitled to a few ales."
AFACT was bound to lobby the government to introduce legislation to change copyright law to aid its case, Moon thought. Yet he also believed it would have to go through an appeal before it could do that, to show the legal system had failed.
"The question is whether they need to exhaust the option of a High Court appeal before they can credibly tell government that (they say) Australian copyright law has been proven to be broken and needs fixing," he said.
"Probably they do. Only when the whole existing legal system has failed to protect their preferred position can they strongly demand changes to the law. We reckon it's off to the appeal courts."
Moon thought it was amusing that the court had thrown out what iiNet had considered to be its "killer argument" — that it was illegal to act on the basis of infringement notices because section 276 of the Telecommunications Act outlaws an ISP using customer information for anything but narrowly defined purposes — ruling that investigation of potential customer contract breaches was a legally acceptable purpose.
The stickiest point for iiNet was whether it could be considered to have implemented a repeat infringer policy which allowed it to use copyright safe harbour provisions, according to Moon.
"But the court was happy to accept that an unwritten idea mostly in an executive's head can constitute an effective corporate policy," he said.