The legal battle over whether internet customers should have their services disconnected if they engage in copyright infringement will now be heard in the High Court, after the AFACT consortium of film studios and production companies was granted special leave to appeal its case this morning.
The appeal comes after the Australian Federation Against Copyright Theft case against ISP iiNet was struck down twice by the Federal Court, although it argues elements of the most recent decision were in its favour.
“Thirty-four film and television industry companies that commenced legal action against iiNet for authorising the copyright infringement of its users today welcomed the High Court decision to grant them special leave to appeal,” AFACT said in a statement.
“Despite being successful on many grounds in their appeal to the Full Federal Court, the film and television companies will seek to overturn the ruling that iiNet did not authorise the acts of infringement that it knew occurred on its internet service.”
iiNet issued its own statement this morning, arguing that production businesses must find new ways of offering their content online in order to curb the amount of illegal downloading occurring within Australia.
Chief executive Michael Malone said that “given the significance of the issues”, he was not surprised the High Court had allowed the appeal.
“Nevertheless, I know the internet industry is eager to work with the film industry and copyright holders to develop a workable solution,” Malone said.
“We will continue to defend our position in these proceedings if necessary. I remain convinced that a genuine industry-wide solution is a better outcome for all concerned and I’m hopeful it will be developed.”
The AFACT case against iiNet has been ongoing for a number of years. The first trial in the Federal Court ruled in iiNet’s favour last year, stating that it wasn’t responsible for the alleged copyright infringements of its users.
In February this year a second trial was heard by the full bench of the Federal Court. It also ruled in iiNet’s favour, but one judge did dissent and the decision did highlight a number of AFACT’s arguments.
Justice Emmett, who found that iiNet was not responsible, said he was not satisfied by the company’s “contumelious” demeanour.
“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,” he said.
The High Court trial will occur later this year.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
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