[LINK] iiNET wins [was: iiNET hearing this afternoon

Jan Whitaker jwhit at melbpc.org.au
Thu Feb 24 15:30:23 AEDT 2011

At 11:01 AM 24/02/2011, Jan Whitaker you wrote:
>Judgment of an appeal by the film industry to get Australian ISP
>iiNet to act on its users downloading unauthorised files will be
>heard in the federal court at 2.15pm this afternoon.


The giants of the film industry have lost their appeal of a lawsuit 
against ISP iiNet in a landmark judgment handed down in the Federal 
Court today.

The appeal dismissed today had the potential to impact internet users 
and the internet industry profoundly as it sets a legal precedent 
surrounding how much ISPs are required to do to prevent customers 
from downloading movies and other content illegally.

The film studios had sued iiNet arguing that by not acting to prevent 
illegal file sharing on its network it was essentially "authorising" 
the activity.
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"I have concluded that the appeal should be dismissed," Justice 
Arthur Robert Emmett said in court this afternoon. But he said it was 
fair to say that the film studios were successful in a number of 
areas in its appeal.
    * <http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/23.html>Read 
the judgment in full here

iiNet CEO, Michael Malone, said the case had so far cost his company 
$6.5 million. "All this legal action hasn't stopped one customer from 
[illegally] downloading in Australia," Malone said.

Justice Emmett scheduled a directions hearing on costs for March 11. 
Despite the decision handed down this afternoon, it's widely expected 
the film industry will appeal the case in Canberra's High Court. A 
Notice of Appeal must be filed within 28 days.

iiNet, which claims to be Australia's second largest ISP, yesterday 
afternoon informed the share market that a decision to the appeal 
would be made today. Earlier this morning the company 
into a trading halt, presumably so it could inform the market of the 
trial outcome before any decisions were made by shareholders.

''We're very pleased that the very sensible decision has been upheld 
on appeal and we hope the copyright industry's war on Australian 
internet users will be blunted by this decision,'' said Colin Jacobs 
of the online users' lobby group Electronic Frontiers Australia.

Greens communications spokesman Scott Ludlam congratulated iiNet on 
its win, saying the ISP was ''the first one to end up in the 
crosshairs'' and had been essentially running arguments on behalf of 
the whole internet industry.

While the government has said it would consider new anti-piracy 
legislation if iiNet won its case, Senator Ludlam said he did not 
believe ISPs should be liable for what customers do on their network. 
He compared the issue to Australia Post ''opening up every envelope 
to check and see if there's a burned CD in there''.

''It's not even so much whether you think piracy is a good thing or 
not it's more where does the liability rest and I tend to agree with 
the arguments that iiNet put that the service provider is not the 
gatekeeper,'' Senator Ludlam said.

The Australian Federation Against Copyright Theft, or AFACT, which is 
representing the movie studios but is not a party to the case, was 
Dennis Cowdroy's Febuary 4 2010 decision, which found an ISP was not 
liable for the downloading habits of its customers.

AFACT recently claimed the film industry had 
$1.37 billion to movie piracy in a twelve month period. Electronic 
Frontiers Australia (EFA) 
that people should apply some skepticism to the figure.

In 2010 Justice Cowdroy specifically found that ISP iiNet did not 
authorise the copyright infringement of users on its network and had 
no obligation to target pirates on behalf of the studios.

The studios appealed the judgment, asserting Justice Cowdroy made 
errors in his interpretation and application of the law. The appeal 
was heard over four days, beginning on August 2 2010.

The suit against iiNet was filed in November 2008 by a group of the 
biggest Hollywood studios including Village Roadshow, Universal 
Pictures, Warner Bros, Paramount Pictures, Sony Pictures 
Entertainment, 20th Century Fox and Disney, as well as the Seven Network.

CEO of iiNet, Michael Malone, was present for the appeal decision. 
AFACT executive director Neil Gane was also present.

AFACT claimed iiNet was liable for "authorising" copyright 
infringement on its network because it did not warn or disconnect 
offending customers when repeatedly notified of the infringements by 
the movie studios.

Separately, Communications Minister Stephen Conroy was criticised in 
2009 for 
he made on the case, when he called iiNet's defence "stunning".

"I saw iiNet's defence in court under oath ... they had no idea their 
customers were downloading illegally music or movies. Stunning 
defence, stunning defence," Senator Conroy said at the time.

"I thought a defence in terms of 'we had no idea' ... belongs in a 
Yes Minister episode."

Melbourne, Victoria, Australia
jwhit at janwhitaker.com
blog: http://janwhitaker.com/jansblog/
business: http://www.janwhitaker.com

Our truest response to the irrationality of the world is to paint or 
sing or write, for only in such response do we find truth.
~Madeline L'Engle, writer

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