UPDATED STORY: Three judges sitting in the Federal Appeal Court have today dismissed the appeal against an earlier judgement in the iiNet Vs movie industry case.

“I have concluded that the appeal should be dismissed,” Justice Arthur Robert Emmett told a packed court this afternoon. He said it was fair to say that the film studios were successful in a number of areas in its appeal.

The appeal was dismissed by two of the three judges hearing the appeal.

Michael Malone, the CEO of iiNet told SmartHouse: “This is a great victory. I am very relieved. We need to read the full judgement”

“The issue of copyright does not go away. It is still an issue that both the government and the industry need to address. We have to fix this problem for the industry to move forward.”

Speaking outside the Court the iiNet CEO said that the case had already cost his company $6M in legal costs and the problem was not an issue for ISPs but consumers who were breaking the law by downloading content.

In a statement issued later Malone said that iiNet has never supported unauthorised sharing or file downloading.

“Today’s judgment again demonstrates that the allegations against us have been proven to be unfounded,” Mr Malone said.

 We urge the Australian film industry to address the growing demand for studio content to be delivered in a timely and cost effective manner to consumers and we remain eager to work with them to make this material available legitimately.”

He said there was growing evidence that content partnerships and agreements between ISPs, legal websites and copyright holders was doing more to reduce piracy and showcase copyright holders materials.

“While fighting iiNet in the courts, many of these movie studios have signed content deals with us through our television service, fetchtv. The success of fetchtv was a clear and successful demonstration of the benefits of these partnerships and Australians’ strong desire to access affordable legitimate content.

“Most notably, while this case has been important, not just for iiNet, but the entire internet industry, it has not distracted us from our core business.




“We have, and will, continue our growth and innovation strategy that has made us the second largest DSL provider in Australia, as outlined in our strong half-year results released on Monday,” he said.

Mr Malone said while this case unfolded iiNet:
· acquired Netspace and AAPT Consumer Division
· became the second largest DSL provider in Australia;
· launched the very successful BoB and BoB Lite products, providing customers with the ultimate all-in-one plug and play internet and phone service;
· launched mobile voice, the Terabyte plan and small business solutions;
· continued to grow our customers and revenue; and
· signed content agreements with a wide range of providers, including Xbox, NineMSN, TiVO, Bloomberg, the Sydney Film Festival,  Village Roadshow Films and many others.

The Australian Federation Against Copyright Theft (AFACT) and Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney as well as the Seven Network in Australia bought the original case in Nobember 2008. The case is tipped to be appealed  to the High Court.

AFACT executive director Neil Gane said the judgment means that copyright infringement would goes on unabated on the Internet.

“It cannot be right that, in effect, the ISP, who has the power to prevent copyright infringement online and admitted they were taking place, does not share the responsibility to stop them,” he told reporters.

In February 2010, the Film and TV industry lost its case against iiNet, on the grounds their users were downloading illegal content via their network. 

It was alleged that the ISP failed to prevent its customers from downloading illegal material and was thus infringing copyright law. 

The case, which was heard in the Federal Court was taken by a string of Hollywood movie houses including Village Roadshow, Universal Pictures, Warner Bros, Paramount Pictures, Sony Pictures Entertainment, 20th Century Fox, Disney as well as the Seven Network in Australia. 


It followed a five-month investigation by the Australian Federation Against Copyright Theft.


During the case last year, Justice Cowdroy found in favour of iiNet saying that “mere provision of access to the Internet is not the means of infringement….the means by which the applicant’s copying is infringed is in iiNet users’ use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system”
Justice Cowdroy also said that iiNet did not sanction, approve or countenance copyright infringement by merely providing the service to its users. This was in contrast “with the respondents in the Cooper and Kazaa proceedings, … [where the respondent’s] website and software respectively were deliberately structured to achieve [copyright infringements],” he said.

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