iiNet Win Again – But Appeal Likely

By Mike Wheeler

• iiNet gets appeal dismissed
• AFACT likely to appeal to High Court
• Judge agrees with iiNet’s accessment

Perth-based ISP iiNet has won the latest round in the court case brought against it by a conglomeration of movie and television studios calling itself the Australian Federation Against Copyright Theft, or AFACT.

What it boils down to is that movie and television production houses want Internet Service Providers to be held responsible for any illegal downloads its customers make. iiNet, and other ISPs have maintained that they should not be held responsible for what its customers do with their internet connection. Those that are downloading the content illegally should be the ones in the sights of AFACT, according to iiNet.

The main argument made against iiNet is that the amount of bandwidth a customer is using should alert ISPs that consumers are illegally downloading both film and television programs. However, unless AFACT go after individuals – which would be time consuming and costly – there is no actual proof that this is happening. After all, there are many large, legal files that can be downloaded from the internet.

However, the judge in the case didn’t use that in his decision. Part of  Justice Arthur Robert Emmett judgement  stated “… a person is not responsible for determining the content of a communication merely because the person takes one or more steps for the purpose of gaining access to what is made available online by someone else or receiving the electronic transmission of which the communication consists. For example, a person is not responsible for determining the content of the communication to that person of a web page merely because the person clicks on a link to gain access to the page.”

The film companies are unlikely to roll over, and have 28 days to launch appeal.