The Australian Federation Against Copyright Theft (AFACT) has written to local internet service providers (ISPs), inviting them to work together on a solution to piracy — if they don't want it to take action using precedents set in its lawsuit against iiNet.
AFACT has been engaged in a long-running battle with ISPs in an effort to get them to address piracy through their networks, with the most high-profile skirmish being its lawsuit against iiNet, which is believed to be headed for the High Court.
iiNet has won several legal rounds against AFACT in the case, but in the latest judgment, onlookers commented that the court's findings may have opened a mechanism for AFACT to request that ISPs disconnect those who are illegally sharing files online, if copyright infringement notices are issued in the correct manner.
This week, AFACT confirmed that it had recently approached a number of local ISPs with regards to file sharing. "AFACT has always been open to discussions and negotiations with ISPs," a spokesperson for the organisation said.
"We have always looked to work closely with ISPs to prevent online copyright theft on their networks and promote the distribution of legal content online. The Federal Court agreed with us, and found that ISPs have a role to play in preventing online copyright theft.
"This is simply an invitation to ISPs to engage with us to fulfil their obligations."
In one letter to an ISP, the organisation specifically referred to the iiNet Federal Court judgement, noting that the court had confirmed that there were steps that could be taken by ISPs when presented with evidence from content owners that users were breaching copyright.
The letter also referred to the steps that ISPs would need to take before ISPs could be considered to be protected by the so-called "Safe Harbour policy" within the Copyright Act, which distances them from the actions of users.
In the letter, AFACT also requested that the ISP respond to its letter within seven days, noting that it would proceed with an unspecified action if it did not hear from the ISP within that time.
Speaking after AFACT lost its first appeal in the iiNet case earlier this year, the organisation's executive director Neil Gane signalled that there was a lot in the judgment to "take heart from", with one judge on the presiding panel finding for AFACT, and another stating that the organisation was successful on many grounds.
At the time, Gane also said that the judgment supported the idea that Australian copyright laws are currently out of touch with the state of technology being used. "Outside of Australia, governments and courts around the world have understood, and have legislated, that there is a role for ISPs to play in combating rampant online infringement," he said, noting that associated legislation had been passed in countries like the UK, France and Taiwan — and was going through the parliamentary process in New Zealand.
"Courts in Europe have mandated that ISPs must block access to well-known customer websites," he added.
One local ISP to receive the letter was Exetel, which, in comparison with other ISPs, already has a number of provisions in its agreement with its customers that are favourable to content owners. For example, the ISP has committed to forwarding any copyright infringement notices received on to customers. If three or more such notices are received, or if Exetel "reasonably suspects" that a customer is infringing copyright, and the customer fails to provide a valid defence for their activity, Exetel reserves the right to disconnect customers' connections.
For his own part, Linton's response to AFACT was brief and to the point, noting that Exetel would always obey the law and act ethically and responsibly, but stating that his company would "deal with bullies in the only way they deserve to be treated."
"I would have thought after the dog's breakfast your 'legal advisors' made of your unlosable lawsuit against iiNet recently, you would have got a higher calibre of legal advice before allowing you to write so threateningly to a company which has always been sympathetic to people whose copyright has been infringed," he said.