AFACT to claw back iiNet court costs

The Australian Federation Against Copyright Theft (AFACT) has commenced court proceedings to recoup some of the costs of its recent copyright court loss against internet service provider iiNet.

Earlier this month, Federal Court Justice Dennis Cowdroy awarded all court costs to iiNet when he found that the ISP could not have authorised its customers' file sharing. iiNet today reported that total court costs incurred to date was $5.7 million.

AFACT has stated its intention to retrieve costs for portions of the case which iiNet had either conceded during the court battle or had been rejected by Cowdroy.

AFACT spokesperson Rebecca Tabakoff pointed out that iiNet had early in the proceedings conceded that its customers had shared — or more specifically uploaded via file-sharing clients such as BitTorrent — copyrighted material that was owned by AFACT's members. She said this was one area of the case AFACT would attempt to recoup costs that were awarded to iiNet.

"[iiNet] spent a lot of time in the lead up to the trial not conceding that their customers had infringed copyright," she told ZDNet.com.au. "The judge awarded all costs against applicants but iiNet was not successful on all fronts."

iiNet had also had a line of defence rejected by the judge — that even if the court found iiNet had authorised its customer's breaches, sections of the Telecommunications Act dealing with customer privacy would have prevented it from following AFACT's request that the ISP forward its breach notifications to customers. AFACT would see if it could also get costs back in that area, according to Tabakoff.

However, she said these two arguments were not an exhaustive list of portions of the case it would fight to recoup costs for.

Cowdroy had also, for example, rejected iiNet's argument that Section 112E of the Copyright Act would have prevented a finding of authorisation. Broadly speaking, the section states that carriers that provide facilities to communicate are not taken to have authorised any infringement just because someone used it that way.

A directions hearing has been set in the Federal Court for 25 February — the date that AFACT must lodge an appeal if it decides to take the matter to the High Court. The company has not yet decided if it will take that action.