Thursday, 24 March 2011 14:13

AFACT to go after iiNet in High Court


After two unsuccessful attempts to collar Australia's second largest ISP iiNet for copyright infringement in court, the Australian Federation Against Copyright Theft (AFACT) which represents major film companies and the Seven TV network is lodging an appeal in the High Court of Australia. AFACT is alleging that iiNet authorised copyright infringement by users of its service.

In February 2010 AFACT, which represents 34 entertainment providers, including Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, lost a case in the Federal Court against iiNet, in which it claimed that the ISP did nothing to stop its customers from engaging in copyright infringement.

AFACT was ordered to pay costs.

One year later, an appeal to the Federal Court by AFACT was dismissed, although AFACT claimed a partial victory because the court ruled that iiNet had the means to prevent its users from infringing copyright.

However, the court found that iiNet was not liable because it had not authorised the copyright infringements. AFACT intends to dispute and overturn that finding.

Representing the film companies, Executive Director of AFACT Neil Gane said, 'The Full Federal Court unanimously found that iiNet had the power to prevent the infringements of its users from occurring and that there were reasonable steps it could have taken, including issuing warnings.'

'However two judges of the Full Court went on to find that iiNet had not authorised the infringements of its users and that is what we are appealing,' Mr Gane said. 'We say they did not apply the legal test for authorisation correctly.'

'On appeal, iiNet did not challenge the findings of the trial judge that they knew the infringements were taking place, yet two of the judges of the Full Court re-opened the issue of iiNet's knowledge. We will argue that the Court's approach in this regard was incorrect,' Mr Gane said.

'In response to the Full Court's conclusion that iiNet did not have have sufficient knowledge of the infringements to authorise them, the film companies will argue that iiNet did have sufficient knowledge, that it admitted the acts of infringement and that its CEO admitted on the stand that the evidence was 'compelling'.

'We are confident of our grounds for appeal and hopeful that special leave to the High Court will be granted,' Mr Gane said.

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Stan Beer

Stan Beer assists with Digital Advertising installation and monitoring of advert performance. With 35 plus years of experience working in IT and Australian technology media, Beer has published articles in most of the IT publications that have mattered, including the AFR, The Australian, SMH, The Age, as well as a multitude of trade publications. Any previous news story submissions should be director to and advertising enquires to

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