iiNet Costs award

I have previously commented on the very important decision in the iiNet copyright case (where Australia's 3rd biggest ISP, iiNet, was found not liable for authorising p2p infringement by its customers).  An appeal is to be heard in August this year.

If you read the original judgement, you can't help but feel that the Australian Federation Against Copyright Theft (AFACT) (which ran the case for the 34 film and TV company applicants) and AFACT's counsel, got completely offside with Cowdroy J, the Australian Federal Court Judge who heard the case.  In the rarefied politeness that is a Court hearing, some of Cowdroy J's criticisms are pretty damning.  I particularly liked this little snipe at AFACT, from paragraph 171 of the judgement:

As an aside, the Court notes that AFACT, the organisation which the applicants use to aid in enforcement of their copyright, itself blurs the distinction between tortuous copyright infringement and criminal acts involving copyright, as seen in its name: Australian Federation Against Copyright Theft [emphasis added].

(New Zealand has a similarly misnamed "NZFACT").

Cowdroy J has now rubbed salt in the applicants' and AFACT's wound by awarding costs to iiNet (see attachment)

As at the time of the judgement, in February this year, iiNet had incurred legal costs of about A$5.7 million.  It claimed full indemnity costs (i.e. the fll A$5.7 million)  for the cause of action that the applicants dropped 6 days out or so from the start of the hearing, but was rejected on that. Even so, a winning party such as iiNet will usually get scale costs at around the 60% mark.  At close on A$3.5 million, that's a pretty hefty bill for the applicants.

UPDATED 28 June 2010:  iiNet didn't claim indemnity costs for the full A$5.7 million; just for the extra costs it incurred on defending the claim that it was a primary copyright infringer.  That claim was abandoned by the applicants just 6 days or so before the hearing started in October 2009.

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