[AusNOG] Hollywood studios tackle iiNet copyright ruling
Skeeve at eintellego.net
Tue Aug 3 06:42:01 EST 2010
I hadn't seen much coverage of the AFACT appeal that was presently happening... so here goes.
Hollywood studios tackle iiNet copyright ruling
COPYRIGHT owners claim Federal Court judge Denis Cowdroy erred when he ruled that ISPs were not liable for breaches by their users.
The federation of 34 entertainment companies yesterday began the first day of its week-long appeal to the full bench of the Federal Court to overturn the ruling and revive its legal bid to halt rampant internet piracy.
The dispute began in November 2008 when the Hollywood group engaged a local anti-piracy lobby, the Australian Federation Against Copyright Theft, to sue Perth internet provider iiNet for infringement of copyright.
In a trial that lasted for more than a month last year, the federation's lawyers tried to persuade Justice Cowdroy that iiNet authorised its customers to use file-sharing systems to breach the copyright laws.
AFACT argued that iiNet authorised piracy on its network when it chose not to take reasonable steps to act on infringement notifications prepared and sent by anti-piracy investigators.
But Justice Cowdroy found in iiNet's favour in February. He ruled iiNet had not authorised the piracy as it had no obligation to control how its customers used the BitTorrent system under Australian copyright law.
Despite its victory, iiNet has contested the ruling and sought changes that would strengthen its immunity from liability.
AFACT argued yesterday that Justice Cowdroy's ruling was out of step with copyright law. The federation's lead barrister for the appeal, David Catterns SC, told the court judges were compelled to consider parts of the copyright law dealing with authorisation cases in a holistic fashion, but Justice Cowdroy had taken a piecemeal approach.
"The right approach is to look at all the factors first. His honour keeps breaking it with little sub-tests, and that has led to error," Mr Catterns said.
The case relied on legal principles set down in the frequently cited High Court decision in favour of Frank Moorhouse against the University of NSW in 1975. The case provided a precedent for Australian copyright lawyers when Mr Moorhouse successfully convinced the High Court the university authorised a student to use its photocopiers to duplicate his book.
AFACT tried to draw a comparison between the photocopying and iiNet's internet connections, but in his February ruling Justice Cowdroy found that BitTorrent, rather than the internet connection, provided the means of infringement.
He said the internet connection was a precondition to the infringement and that iiNet had no relevant power to control the means of infringement, which was the file-sharing system.
AFACT has engaged in a legal battle to challenge Justice Cowdroy's reasoning, based on the argument he deviated from amendments to the Copyright Act introduced in 2000 compelling judges to take certain steps when considering authorisation cases.
IiNet is expected to argue that AFACT's criticisms of Justice Cowdroy are unwarranted and misconstrue copyright law.
It has asked the full bench to reverse Justice Cowdroy's finding that iiNet was unable to use section 112E of the Copyright Act as a shield against copyright liability.
The company also wants the full court to review Justice Cowdroy's finding that telecommunication laws on consumer privacy prevented it from using its customer database to pass on AFACT's infringement notices.
The appeal resumes today.
Skeeve Stevens, CEO/Technical Director
eintellego Pty Ltd - The Networking Specialists
skeeve at eintellego.net / www.eintellego.net
Phone: 1300 753 383, Fax: (+612) 8572 9954
Cell +61 (0)414 753 383 / skype://skeeve
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