iiNet and the Australian Federation Against Copyright Theft have been ordered by the Federal Court to create a “decision tree” covering the history of their copyright case and the ramifications of the possible decisions that could be made in favour or against either party.
The move signifies just how complex the case has become, with over 50 different areas of law overlapping and affecting each party’s appeals. The order comes at the end of a week of hearings, all of which finished yesterday.
“Because the case is so complex and there are so many issues, that is the basis of this order. Both sides are appealing some parts of the case and those points often interrelate and overlap,” AFACT spokesperson Rebecca Tabakoff told SmartCompany.
In the final day of hearings yesterday, Justice Emmett said he would like to see a collection of materials relating to the case, along with a decision tree which would outline the various possible judgments available.
“What I have in mind is a fairly detailed document. It would also be helpful to have a reference to submissions where each of those particular issues [in the tree] was dealt with – bearing in mind that we probably won’t be writing [our decision] this week.”
The issue has become complex because the issue of copyright infringement is extremely technical, and the fact both iiNet and AFACT are appealing findings in the case which iiNet actually won.
AFACT is attempting to show iiNet had a responsibility to stop copyright infringements occurring on its networks, while iiNet is attempting to uphold the original ruling from earlier this year which stated it was in the clear.
However, iiNet is also appealing some technical arrangements of the case, relating to how infringements are actually defined. AFACT is appealing on 15 separate points, including arguments on “safe harbour” laws, the scope of the privacy act and the method actually used to count infringements in its own investigation.
Tabakoff says there are so many complex issues overlapping and relating to each other that a decision tree and collection of materials is essential.
“If you look at the safe harbour laws, these laws state you do need to have a policy in place, that policy needs to have a concept of reasonableness, and there are also issues around levels of authorisation, whether iiNet authorised the acts of their users and so on.”
“That’s just one example. This interaction happens in about 50 different areas in the case and there are a lot of areas where one aspect of the law affects another appeal. The judges have asked both sides to map it all out.”
Safe harbour laws relate to provisions which state iiNet doesn’t have to act on infringements on its network unless it receives court orders. AFACT is attempting to appeal this part of the case.
Over the past four days, both sides have argued extremely technical points of law including aspects of the Privacy Act, Telecommunications Act and whether iiNet knew its users were actually infringing on the copyright of AFACT members.
AFACT counsel David Catterns QC said it was seeking a “declaration that our friends [iiNet] authorised the primary infringement that they have admitted to”, and added it would be looking for compensation should it win.
He also rejected the argument from iiNet managing director Michael Malone that the company is doing enough to combat piracy by establishing a “freezone” of content made in partnership with major studios.
“The idea that someone at home… using BitTorrent is going to be crowded out because they are so busy cruising the freezone that they won’t be offering to seed other people with the films they’ve already downloaded from BitTorrent doesn’t go very far, we’d submit,” he said.
iiNet counsel Richard Cobden continued to defend the ISP, saying it did not authorise the infringements of its customers.
The “decision tree” is now due before the Federal Court on August 20. If satisfactory, the full bunch will reserve judgement with an announcement to be made later this year.
“We feel we have shown iiNet had an obligation to prevent the infringements of their users, and we still feel that way. We believe our grounds are strong,” Tabakoff says.
iiNet was contacted for comment, but no reply was received before publication.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
