An attempt to cast a pall over internet usage
As you’ve surely learned by now, Justice Cowdroy handed down his judgment in Roadshow Films v iiNet this morning. In a nutshell, internet service providers are not liable for the transgressions of their customers.
The legal implications and likelihood of appeals have been well canvassed elsewhere. What struck me while reading the 200-odd pages was the picture his Honour painted of the conduct of the parties both prior to and during the hearing.
What follows is a selection of excerpts from the judgment that I think capture its overall tone.
On the industry’s analogy between infringement and theft, at [171]:
As an aside, the Court notes that AFACT, the organisation which the applicants use to aid in enforcement of their copyright, itself blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright Theft.
On the mysterious nature of AFACT, at [80]-[82] and [166]:
AFACT is an organisation set up for the purposes of benefiting its members. … ¶ The exact nature of the relationship between the applicants and AFACT is not clear. Mr Gane, the Executive Director of AFACT, suggested that there was no formal membership process by which one can become a member of AFACT, whether by application or agreement. … ¶ The Motion Picture Association (‘MPA’) and the Motion Picture Association of America (‘MPAA’) have a membership of the major American film studios. They are not associated with AFACT by any formal written agreement. However, AFACT does report to the regional branch office of the MPA which is based in Singapore. In respect of operations in the Asian region, the Singapore office of the MPA prepares a business plan or budget for AFACT which is approved by the Los Angeles head office of the MPA. [...] ¶ [I]t must be remembered that the applicants were not the entities making the allegations of copyright infringement in the lead up to these proceedings: rather, AFACT was doing so. … [T]he exact relationship between AFACT and the actual copyright owners (the applicants) is, at best, unclear.
On the way AFACT presents itself in its infringement notices, at [629]:
The AFACT notifications are not statutory declarations, nor do they have any statutory basis. At no point did Mr Gane swear to the truth of the allegations contained in such Notices. At no point does he state that he personally had taken reasonable steps to ensure that the information and statements in the notice were true and accurate. … The tone of the letter is not so much that AFACT is an agent of copyright owners, but rather seeks to imply that AFACT is some form of quasi-statutory body whose requests required compliance.
On the ambition of the applicants’ submissions, at [239] and [250]:
One of the more adventurous submissions the applicants appeared to make in these proceedings was that bandwidth, downloading or quota usage by iiNet users could be considered synonymous with copyright infringing behaviour. [...] ¶ [T]he claim made throughout these proceedings that bandwidth usage or downloading is somehow necessarily, predominantly or even significantly copyright infringing, is simply not established on the evidence. The Court finds the applicants’ attempt to cast a pall over internet usage, such that it is assumed to be infringing, unless otherwise shown, is unjustified. The Court does not find that there is any evidence that the majority or even a substantial usage of the bandwidth allocated by the respondent to its subscribers relates to the infringement of the applicants’ copyright.
On counsel for the applicants’ treatment of iiNet’s CEO in the witness box, at [133]-[134]:
The Court rejects the attack on the credit of Mr Malone. Mr Malone was an impressive witness who remained consistent (for the most part) in the evidence he gave during three days of gruelling and unnecessarily hostile cross-examination. … ¶ Mr Malone may not have been a helpful witness to the applicants’ counsel, but that did not render Mr Malone an unhelpful witness to the Court. Mr Malone was occasionally asked questions which were technically imprecise and thus potentially misleading. His refusal to concede matters, his desire to seek clarification and his careful answers were not obfuscation as was submitted, but rather seemed to represent Mr Malone’s desire to be accurate in the evidence he provided to the Court and his refusal to be forced, by the manner of questioning, into giving evidence that he did not believe to be correct.
On the applicants’ belief in their own correctness, at [135]:
Merely because the views expressed by Mr Malone did not accord with the interests of the applicants does not render those views ‘extreme’. The flaw in the applicants’ submissions relating to the credit of Mr Malone is that they proceed on an assumption that the applicants have already succeeded in these proceedings; that the respondent has been found to have authorised copyright infringement; and that therefore resisting the applicants’ assertions, or refusing to co-operate with the applicants, inevitably leads to the result that Mr Malone’s opinions must be ‘extreme’. Such posture tended to convolute these proceedings.
And again, at [504]:
The applicants appear to premise their submissions on a somewhat binary view of the world whereby failure to do all that is requested and possible to co-operate with copyright owners to stop infringement occurring, constitutes approval of copyright infringement. Such view is not the law. It is possible to be neutral. It is possible to prefer one’s own interests to those of the copyright owners.