Appeal To The Full Court of The Federal Court
AFACT appealed to the full bench of the Federal Court, and was dismissed on 24 February 2011. The majority of the Full Court stated that liability was not established as the copyright owners had not provided sufficient information and verification to support their allegations.
Justices Emmett and Nicholas found that iiNet had not authorised the infringement of copyright, with Justice Jagot dissenting. However Justice Emmett made additional comment:
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
Since the decision has been released, notable Australian intellectual property law academics David Brennan and Kimberlee Weatherall have suggested the outcome is not very favourable for ISPs.
Key findings which were established in the appellant court were:
- Justice Emmett and Justice Jagot found that ISPs can be found liable for authorising their users for infringement under specific circumstances.
- Account holders were liable for infringements on the customer account in the context of disconnection due to repeat copyright infringement.,
- ISPs were not afforded protection under the Telecommunications Act
- 112E of the Copyright Act 1968 (known colloquially as the facilities defense), and one which equated an ISP to Australia Post and often cited by groups such as the Internet Industry Association and other supporters was found by the trial judge and all three appellant judges as not a valid defense.
- All three appellant justices, found that iiNet would not have been afforded protection under the "Safe Harbours" negotiated in the copyright act, as they did not have a policy to deal which allowed for termination of repeat infringers in appropriate circumstances.
The Full Court's judgement was followed by negotiations for legislative and industry-based solutions to resolve the issue of online copyright infringement, but these had not reached a conclusion by the time of the subsequent High Court appeal decision in 2012.
Read more about this topic: Roadshow Films V Ii Net
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