AFACT v iiNet: Studios seek to recoup costs

Directions hearing to take place on 25 February, but no word yet on appeal

The Australian Federation Against Copyright Theft (AFACT) will take Perth-based Internet Service Provider (ISP) iiNet back to court this Thursday to recoup costs from a copyright infringement case it lost against the ISP.

AFACT will use a directions hearing to try to recoup court costs in sections of the case which were upheld by presiding judge Justice Cowdroy, and will also claim for expenditure during what the group says were delays by iiNet in admitting the presence of copyright infringements on its network.

Earlier this month Justice Cowdroy found that despite findings of copyright infringement by iiNet customers, the ISP did not authorise the acts of its customers and subsequently threw the case out.

The ruling came after film companies including Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises and the Seven Network, the Australian licensee of some of the infringed works, filed a legal action against iiNet in November 2008.

They commenced action against iiNet following a five-month investigation that uncovered instances of copyright infringements by users of iiNet’s services.

However an AFACT spokeswoman said the group has not lodged an appeal yet and is unaware of any plans to do so.

“AFACT put in application for costs to be re-heard and it asks for costs to be adjusted for the parts of the matter that iiNet lost,” the spokeswoman said.

Melbourne University associate professor, David Brennan, said an appeal was likely and interested parties are "probably looking at 2011 or 2012 before a final judicial determination".

"I think it is wrong to see this as the be all and end all," Brennan told Computerworld after the trial decision.

"This is simply the opening battle or the first chapter in the legal story. It will, I think, have to play out all the way to the High Court and I wouldn't be surprised if the High Court granted leave either way the decision goes in the full Federal Court. I think the dissatisfied party would seek leave to the High Court after the full Federal Court decision and there is some degree of likelihood the High Court would grant that."

Both parties have suffered considerable financial expense to date in pursing the case and AFACT was ordered to pay iiNet's costs to the tune of A$4 million. It is another reason AFACT will likely seek an appeal, Brennan argued.

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