iiNet wins appeal brought by studios

24/02/2011 - 12:25

A group of 34 movie studios headed by Village Roadshow has lost an appeal against a Federal Court judgement involving internet service provider iiNet.

A group of 34 movie studios headed by Village Roadshow has lost an appeal against a Federal Court judgement involving internet service provider iiNet.

In a landmark ruling a year ago, the court had found it was impossible to hold iiNet responsible for its users illegally downloading movies and television shows.

The group heard in the Federal Court on Thursday that it had lost its appeal.

In the initial case, the group had tried to prove iiNet not only failed to take steps to stop illegal file-sharing by customers but breached copyright itself by storing the data and transmitting it through its system.

iiNet chief executive Michael Malone said the company welcomed the court's decision, but has never supported unauthorised sharing or file downloading.

"Today's judgment again demonstrates that the allegations against us have been proven to be unfounded," Mr Malone said.

"We urge the Australian film industry to address the growing demand for studio content to be delivered in a timely and cost effective manner to consumers and we remain eager to work with them to make this material available legitimately."

Mr Malone said that content partnerships and agreements between ISPs, legal websites and copyright holders was more effective in reducing piracy and showcasing copyrighted materials.

"While fighting iiNet in the courts, many of these movie studios have signed content deals with us through our television service, fetchtv," Mr Malone said.

"The success of fetchtv was a clear and successful demonstration of the benefits of these partnerships and Australians' strong desire to access affordable legitimate content.

"Most notably, while this case has been important, not just for iiNet, but the entire internet industry, it has not distracted us from our core business.

"We have, and will, continue our growth and innovation strategy that has made us the second largest DSL provider in Australia, as outlined in our strong half-year results released on Monday."

The executive director of the Australian Federation Against Copyright Theft, Neil Gane, said iiNet had admitted to tens of thousands of copyright infringements.

"It cannot be right that, in effect, the ISP (internet service provider), who has the power to prevent copyright infringement online and admitted they were taking place, does not share the responsibility to stop them," Mr Gane told reporters outside court.

"Copyright infringement now goes on unabated on the internet.

"We take heart however, that Justice (Jayne) Jagot found for us and that Justice (Arthur) Emmett said that we were successful on many grounds.

"We will be taking our time now to examine the judgment in detail and consider all of our options."

In his judgment dismissing the appeal, Justice John Nicholas said iiNet accepted that it had general knowledge of copyright infringement committed by its users.

But, as the primary judge had also observed, "it would be difficult for the company to act on knowledge of such a general kind with a view to preventing or avoiding copyright infringements by people using its network.

"This is because the respondent would have no means of knowing who had used its facilities to infringe copyright unless that knowledge was provided to it by third parties," Justice Nicholas said.

Village Roadshow had submitted that notices issued by AFACT provided iiNet with all it needed to know to issue warnings to its subscribers and, if appropriate, terminate or suspend the accounts used to infringe copyright.

"I do not think that is correct," Justice Nicholas said.

He continued that iiNet had "hundreds of thousands of customers and that each day it receives hundreds of notices issued by or on behalf of copyright owners".

"I do not think the respondent could reasonably be expected to issue warnings, or to terminate or suspend particular accounts, in reliance upon any such notice in circumstances where it has been told nothing at all about the methods used to obtain the information which led to the issue of the notice," Justice Nicholas said.

"Nor should it be up to the respondent to seek out this information from a copyright owner who chooses not to provide it in the first place."

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