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Herbert Geer's win for iiNet
Do lawyers have ‘agility anxiety’?:

Herbert Geer's win for iiNet

After a 14-month battle against the Hollywood film industry, last week Justice Cowdroy held that iiNet did not authorise copyright in­fringement, which means that ISPs are not liable for…

After a 14-month battle against the Hollywood film industry, last week Justice Cowdroy held that iiNet did not authorise copyright in­fringement, which means that ISPs are not liable for copyright infringements that occur when their users download and share content.

iiNet's victory was a win for ISPs all over the world, however, the battle between service providers and content owners may not be over yet. Whether it's through legislative change, or through the courts, internet copyright law is set to be reshaped.

Herbert Geer partner, Graham Phillips, was the force behind last week's landmark win for iiNet - the first Australian case to be covered live on Twitter.

With a core team of six lawyers split between Melbourne and Sydney, and as many as 15 lawyers during the discovery phase, Phillips' IP team dealt with the many challenges associated with the test case, including the huge media at­tention and following on Twitter.

Challenges of the case

Identifying the public focus as a key challenge, Phillips says the media attention throughout the earlier phases "created an extra overlay in com­plexity" which "increased the pressure you feel as you're dealing with them".

During the trial, the Twitter coverage became a particular issue for Phillips, who had to deal with the public discourse that was being considered instantaneously. Being aware that those issues were playing live in the public at the time was a new skill and requirement Phillips was forced to grapple with.

An expert in copyright law, Phillips has acted for all types of participants in the telecommunica­tions industry, including carriers, service providers, equipment suppliers, government, users and in­vestors. He has worked on a number of cases, often representing smaller clients against much larger or­ganisations, and describes how Herbert Geer, like iiNet, sees itself as a "challenger brand". "In their industry, iiNet see themselves as a challenger brand and I guess as a firm, we feel the same."

As well as significant media attention, Phillips describes how new areas of law introduced in a test case throw up "a number of intellectual chal­lenges", he says. "Dealing with and having to as­sess what the new arguments were, but then working those out, has been very rewarding."

He also points out the difficulty in dealing with the technological aspects of the case. He says there was a cross-over between the technology and communications areas of law. "That was a challenge, but we have the skills here at Herbert Geer to deal with those different areas."

Over the past 18 months, Phillips says the firm's flexibility was a key factor in overcoming the pressure on resources. "One thing we pride ourselves on is being flexible. We drew upon lawyers not only within our IP team but also from the firm's litigation group. [We also] drew in new staff quite quickly, and in doing that we were quite targeted in looking for additional skill-sets that we thought were appropriate."

A possible appeal

What's next for Phillips and his team depends on whether an appeal is filed by the Australian Fed­eration Against Copyright Theft (AFACT), who have until 25 February 2010 to lodge. Until then, Phillips says his team will be reviewing the judgement and preparing for that possibility of an appeal.

Expressing his delight at last week's outcome, Phillips admits an appeal is "quite likely given that the Hollywood studios will be seeking some form of precedent", but he says they would have to demonstrate that a different legal test is applicable.

Future changes to copyright law could re­sult from legislative change, despite the likeli­hood of an appeal. John Fairbairn, a partner at Clayton Utz, who has been advising the Inter­net Industry Association on the case, notes the points that AFACT may have to argue: "There is a lot of uncertainty in the law of authorisation. The judge in this case has been very decisive and drawn a distinction between access to the internet and the software that's used to in­fringe. AFACT may well argue for an alternative construction to the authorisation provisions in the Act."

The case leaves it unclear as to what more could be done to combat online piracy. "ISPs are proposing alternative business models to deal with this issue but if that doesn't happen, AFACT foreshadowed that they'd be looking for legislative changes," says Fairbairn. "You can't just tinker with ISP-specific provisions. It's likely to require some pretty dramatic changes to the Act."

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