Justice Arthur Emmett says it’s unlikely the case will resolve the question of who’s responsible for dealing with copyright infringement by BitTorrent users and that AFACT is likely to sue iiNet again even if it loses the current appeal.
During day 3 of the Australian Federation Against Copyright Theft’s (AFACT) appeal hearing Justice Arthur Emmett repeatedly questioned whether or not the case will answer the question of who’s responsible for fighting copyright infringement on an ISP’s network.
“You say you don’t like the infringement of copyright and that [rights holders] are just throwing rubbish at us [the notices],” he told iiNet’s lead attorney senior counsel Richard Cobden. “Is it just a matter of who bears the cost of dealing with all this? It seems to be a continuing problem and that whatever we decide in this case isn’t going decide what goes on in the future.”
He added that he thought there should be some sort of “commercial solution” or mediation that can be employed to address copyright infringement disputes, but that either are beyond the purview of the Federal Court and that it there is little it can do to determine who’s ultimately responsible for dealing with the problem.
Justice Emmett emphasized that even if iiNet wins this appeal there was nothing to prevent AFACT from taking the ISP to court in the future over what it consider anti-piracy inaction.
Cobden was asked to defend yesterday’s assertion that a graduated response system didn’t constitute a “reasonable step” to prevent illegal file-sharing. He said that AFACT never asked it to have graduated responses against people named in copyright infringement notifications it received, and was only told to terminate their Internet connections which it said is “unreasonable.”
He also suggested that having to create a graduated response system as AFACT requests would “throw a burden onto iiNet as an organization at the customer relations level on having to deal with a someone else’s businesses – that is the copyright holders – on matters that isn‘t the realm of iiNet.”
Cobden pointed out that it receives notices from multiple copyright holder sources and that if AFACT manages to convince the court that a graduated response system is a “reasonable step” then it will be forced to act on all of them and have to bear the undue costs that goes with it.
iiNet managing director Michael Malone has maintained all along that the best way to fight piracy is to do what even the studios have admitted in court: “making content freely and cheaply available online.”