Australian Anti-Piracy Group Threatening ISPs With Legal Action... Even Though Court Already Ruled Against Them

from the fantasy-land dept

Apparently, the Australian "anti-piracy" group AFACT (Australian Federation Against Copyright Theft) is living in a bit of a fantasy land. Despite losing badly in the courts twice by trying to force iiNet to act as a copyright cop, without knowing what is and what is not infringing content, AFACT is now warning other ISPs that they must become copyright cops, or else.
The letter makes several references to the Federal Appeal Court's February ruling on AFACT's bid to make ISPs liable for copyright infringement by their customers.

It gives Exetel seven days to indicate whether it will "attend a meeting with AFACT" to discuss a system of graduated responses to online piracy.
It seems kind of bizarre to cite a ruling in which you lost badly, as a reason why others need to do something that the court said iiNet didn't have to do.
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Filed Under: afact, australia, copyright, isps, liability

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  1. icon
    G Thompson (profile), 13 Jul 2011 @ 1:55am

    Re: Hope it is all just hot air

    The comments made by the Judge in question were what is called in legalese 'obiter dicta[m]' and are only made in passing so to speak and are not used in their decision to reach a verdict either way, in fact they are just thoughts that the judge uses to speculate on maybe's and other possibilities or hypotheticals. Aussie legal beagles love hypotheticals - Just ask Geoffrey Robertson [*in joke for Aussie legal profession*].

    Obiter, carry no legal weight whatsoever in the decision handed down and are therefore not binding on any party.

    In this case it does suggest an interpretation of the current law that though it has has no bearing on the decision handed down, that totally wiped the floor with AFACT's specious arguments, this obiter might be useful in future cases.

    This is because though it is an off-the-cuff and non-binding remark, having been stated by a judge, and in this case a High Court Judge of Australia (equivalent is Supreme Court in the USA) it can be interpreted as binding precedent in certain circumstances, as well as being extremely influential and persuasive to any lesser courts.

    Therefore it is advisable to take this sort of obiter with more than just a grain of salt.

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