news The Australian Federation Against Copyright Theft (AFACT) today said its high-profile loss in its High Court case against ISP iiNet illustrated that Australia’s Government needed to step in and take action on the issue of Internet piracy in Australia.

This morning the High Court dismissed an appeal by AFACT and its cohort of several dozen film and TV studios, in the conclusion of a long-running case in which the content owners had alleged iiNet had authorised the infringement of copyright through not taking action against the pirating activities of its users through platforms such as BitTorrent. The case is viewed as setting a precedent for how Australian ISPs will deal with Internet piracy in future.

However, in a statement issued this afternoon, AFACT said the war was not over. “Today’s decision by the High Court exposes the failure of copyright law to keep pace with the online environment and the need for Government to act,” AFACT said in a statement this afternoon.

AFACT managing director Neil Gane (pictured) said in their judgement, the High Court judges had “unanimously recognised that legislative change was required to address the widespread copyright infringements via peer to peer technology in Australia”. “Both judgements in this case recognise that copyright law is no longer equipped to deal with the rate of technological change we have seen since the law of authorisation was last tested,” said Gane. “They both point to the need for legislation to protect copyright owners against P2P infringements.

“The Judges recognise the significant rate of copyright infringement online and point to the fact that over half the usage of iiNet’s internet service by its customers (measured by volume) was represented by Bit Torrent file sharing which was known to be used for infringing activities,” Gane added. “Now that we have taken this issue to the highest court in the land, it is time for Government to act.”

In the High Court’s judgement in the case, the court found that the concept and the principles of the statutory tort of authorisation of copyright infringement were “not readily suited” to enforcing the rights of copyright owners with respect to widespread copyright infringements through platform such as BitTorrent.

“The difficulties of enforcement which such infringements pose for copyright owners have been addressed elsewhere, in constitutional settings different from our own, by specially targeted legislative schemes, some of which incorporate co-operative industry protocols, some of which require judicial involvement in the termination of internet accounts, and some of which provide for the sharing of enforcement costs between ISPs and copyright owners,” the court added.

Gane said AFACT and its partner organisations were confident that the Government would not want copyright infringement to go on unabated across Australian networks, “especially with the rollout of the National Broadband Network”, and that the decision showed that Australian law had been left behind by overseas developments in “online copyright protection”.

“In the three years since the case commenced, legislators, regulators and courts around the world have mandated that ISPs must play a central role in preventing online copyright theft,” he said. “Fortunately, many ISPs have come to the conclusion that being involved in online copyright protection is in their commercial interests,” he said. “ISPs are becoming increasingly dependent on monetising legal content and therefore protecting its value.”

Gane said it was too early to comment on the details of the decision but that the copyright owners would be having discussions with Government in due course.

“We thank the actors’ union (MEAA), and songwriters, composers and publishers (APRA), who also had concerns about the outcome of this case, for taking the time and effort to express them to the court,” he concluded. “We would also like to acknowledge all content creators whose movies, music, pictures and words we all enjoy and for whom today’s decision must be extremely concerning.”

The news comes as the Federal Attorney-General’s Department has over the past six months hosted a series of closed door meetings between ISPs like iiNet and rights-holder organisations such as AFACT, with industry groups such as the Communications Alliance also involved.

However, the Attorney-General’s Department has used a series of complex legal arguments to deny the release of documents associated with the meetings under Freedom of Information laws — redacting, for example, an entire 14 pages of notes taken by a departmental staffer at the event and other four pages of notes taken by a senior staffer from Communications Minister Stephen Conroy’s department. The moves have led to the Australian Greens filing a motion in the Senate requesting that the documents be released.

In addition, representatives of consumer groups have been explicitly barred from attending the talks.

The sole organisation to publicly reveal any information about the talks is iiNet. Recently, the ISP’s regulatory chief Steve Dalby posted comments on Delimiter stating that there was a “massive” gap in the talks between what the ISP and content industries wanted. “Most, if not all of the discussions over the years have been conducted between the rights holders and the ISPs,” he said. “These have been fruitless. The rights holders want all the benefits of remedial action, but want the ISPs to foot the bill. ISPs don’t want to pay to protect the rights of third parties. The gap between the parties is considerable and unlikely to close.”

Separately, a coalition of most of the nation’s major ISPs last year proposed a scheme for handling Internet piracy which would see Australians issued with warning and educational notices after content holders provided evidence that they had breached their copyright online — and the door opened for ISPs to hand over user details to the content industry if they keep on pirating content online. At the time, AFACT declined to comment on the issue, citing the need for the iiNet trial to go ahead.