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Copyright war has only just begun

The fight is likely not over for movie studios and other media producers, which are likely to lobby for more legal protection despite a major loss in the Federal Court this week, lawyers now argue.

user iconKate Gibbs 05 February 2010 The Bar
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THE fight is likely not over for movie studios and other media producers, which are likely to lobby for more legal protection despite a major loss in the Federal Court this week, lawyers now argue. 

The Federal Court this week found that an internet service provider was not liable for illegal downloading by its users.


Perth-based internet service provider iiNet, the third largest ISP in Australia, successfully defended proceedings brought against it by 34 media companies, including Universal Studios, Paramount Pictures and Warner Bros. 

The applicants claimed that iiNet was liable for copyright infringement because it authorised its customers to access the internet to use file sharing programs to download movies and other media.

Middletons IP expert, Troy Gurnett, told The New Lawyer that while "ISPs are off the hook, it's business as usual", it is likely given the vested interests in this case, that copyright owners will move forward by going to the Full Federal Court. 

He said their right of appeal is to the Full Federal Court, not the High Court as some have suggested. 

"This is a really important issue to the copyright owners, so I think they will follow up every appeal avenue they have," said Gurnett. 

They will either appeal to the Full Federal Court or look for a legislative response, lawyers say.

"It will either need new legislation or they will amend the copyright act in such a way that forces the ISPs to assist copyright owners enforce it," said Gurnett. 

"If they can't get the joy they are seeking from the courts they would turn to the government. I think they will do both. i think they will appeal to the full Federal Court and start to throw a bit more energy in the direction of the government. I think they will start straight away. If they are going to appeal, we will know about it within 21 days."

Queensland specialist in intellectual property and technology law, Michael Morris, head of HopgoodGanim’s Intellectual Property and Technology practice, agreed other avenues will be explored.

“At the moment, companies and copyright holders have no effective legal protection against copyright infringement carried out on the internet. Business models and legislation haven’t kept up with the advances in technology we’ve seen over the past few years," Morris said.

Morris said that it’s often impractical for studios to sue individual offenders, as online copyright infringement is widespread and taking legal action against individual offenders is difficult to justify from a public relations perspective.

He said the applicants may instead look to push for legislative changes. For example, in the United Kingdom, a three strikes policy requires ISPs to provide three warnings to repeat infringers, after which internet access is terminated.

“The judge pointed out that all iiNet did was provide its users with access to the internet. It’s unfortunate that some of these users then used file sharing programs and infringed copyright, but holding iiNet accountable for this would be like holding Australia Post accountable for the contents of the letters they deliver”.

According to Morris, this is certain to be one of the most important Court decisions this year in the area of copyright law. 

“This trial was the first of its kind in the world to go as far as hearing and judgement,” he said.

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