2-0: iiNet wins film industry's piracy appeal

Just over a year since iiNet won its original long-running piracy trial (in which it was alleged by the Australian Federation Against Copyright Theft [AFACT] - representing a number of major Hollywood movie studios including Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment and Twentieth Century Fox Film Corporation - that the ISP infringed copyright by failing to take reasonable steps to prevent its customers illegally pirating films and television programs), iiNet has again trumped the movie industry by winning the appeal lodged against the primary decision by AFACT.

Today, the Full Federal Court of Australia dismissed AFACT's appeal against the original decision. The studios had alleged that the primary judge, Justice Cowdroy, erred in law with regard to iiNet's capacity to prevent ongoing infringements and claimed that the original judgment represented "a serious threat to Australia’s digital economy.” However, the Full Federal Court did not agree with AFACT's assertions, dismissing the appeal (with one dissent).


As Justice Emmett identified the central issue: "The principal question in the appeal is whether, within the meaning of s 101(1) of the Copyright Act, iiNet authorised such acts of infringement on the part of iiNet users as may be found to have occurred."

On this crucial point, iiNet was not found to be liable by Emmett J, although neither was the judge particularly impressed by the ISP's "contumelious" attitude: "while the evidence supports a conclusion that iiNet demonstrated a dismissive and, indeed, contumelious, attitude to the complaints of infringement by the use of its services, its conduct did not amount to authorisation of the primary acts of infringement on the part of iiNet users."

Nicholas J concurred with Emmett J, saying "it cannot be inferred that a person authorises copyright infringement merely because he or she provides another person with communication facilities used by the other person to infringe copyright."

However, in a dissenting judgment, and one which may bolster AFACT's grounds for a final appeal to the High Court, Jagot J concluded that "iiNet authorised the acts constituting the primary infringements." Whether the movie industry likes its chances for a third go round remains to be seen; in any case, AFACT has 28 days to decide whether to lodge one last appeal.

iiNet welcomed the decision. In a statement, Michael Malone, CEO, said: “Today’s judgment again demonstrates that the allegations against us have been proven to be unfounded. We urge the Australian film industry to address the growing demand for studio content to be delivered in a timely and cost effective manner to consumers and we remain eager to work with them to make this material available legitimately. While fighting iiNet in the courts, many of these movie studios have signed content deals with us through our television service, fetchtv. The success of fetchtv was a clear and successful demonstration of the benefits of these partnerships and Australians’ strong desire to access affordable legitimate content."

The full judgment of the court can be read here.