Australia’s most high profile copyright litigation will head to the High Court now that film industry representative AFACT has secured special leave to appeal the Full Federal Court decision in Roadshow Films Pty Limited v iiNet Limited. As parties prepare for this third round of litigation, we summarise the state of the legal proceedings in the case.
A coalition of film studios sued internet service provider iiNet for infringement of copyright in the studios’ films In late 2008. A key argument was that the ISP was liable for its users’ infringements as it was aware of what was going on (having received notifications about such infringement from rights holders) and did not act to curb such activity, thereby authorising the infringements. However, the Federal Court decided in iiNet's favour, ruling that iiNet had not authorised the infringements.
AFACT then appealed to the Full Federal Court and while the appeal was dismissed, it was a mixed victory for iiNet as the Court did not preclude holding an ISP liable for authorsiation under different circumstances.
AFACT then announced its intention to seek special leave to appeal the case to the High Court. It appealed on six grounds that largely focus around two issues:
(1) Whether the Full Federal Court erred in its application of the principles of authorisation and following this, whether the subsequent finding iiNet did not authorise its users’ copyright infringements is incorrect; and
(2) Whether the Full Court erred in its treatment of the “knowledge” aspect (i.e. how much iiNet needed to know before sufficient knowledge of the infringements could be demonstrated). AFACT’s notification procedure and iiNet’s responses to this will be of relevance here.
The High Court can hear an appeal if one or more of its membership determine that the question of law to be answered is of sufficient public importance.
Counsel for AFACT argued that: “Authorisation is a practical test by which you can attempt to enforce or protect [rights] with someone who it is practical to deal with, namely, someone higher up the chain, such as the university as opposed to the individual student, or here, the ISP as opposed to the individual infringer at their computer”. 
Counsel for iiNet argued that the special leave questions did not themselves present any question of general importance, particularly as a number of the grounds were too heavily reliant on the particular fact circumstances of the case. 
Justice Crennan and Chief Justice French disagreed with iiNet’s argument and granted AFACT special leave for appeal. The High Court will hear five of the proposed six grounds of appeal (ground three was deemed to have been sufficiently covered in the other grounds).
AFACT and iiNet will now submit their motions and cross-motions for appeal. Whilst there is a possibility the High Court could begin hearing the matter later this year, it is unlikely a decision will be handed down before 2012.
See the transcript of the High Court application for special leave at:
 Catterns, D. in Roadshow Films Pty Ltd & Ors v iiNet Limited  HCATrans 210
 Cobden, R. in Roadshow Films Pty Ltd & Ors v iiNet Limited  HCATrans 210