Crux of iiNet defence due by April

Crux of iiNet defence due by April

Summary: ISP iiNet undertook today to stop sitting on the fence on whether it will admit that its users have been infringing copyright, in a Federal Court hearing today for the court case brought against it by the Australian Federation against Copyright Theft.


ISP iiNet undertook today to stop sitting on the fence on whether it will admit that its users have been infringing copyright, in a Federal Court hearing today for the court case brought against it by the Australian Federation against Copyright Theft.

iiNet CEO Michael Malone (Credit: iiNet)

iiNet was dragged into the Federal Court in November as major film studios filed a case against the ISP for allegedly letting its users download pirated movies and television series.

At the last court hearing in February, iiNet said that it was not contesting that copyright existed for titles but did not make a decision on whether it was going to concede that its customers have been infringing copyright. It has already said that it is denying it authorised users to infringe copyright.

AFACT had brought a motion against iiNet, which was to be heard today, along with other concerns both from it and the other side, to bring the ISP to make a decision.

AFACT said that since iiNet had requested and received particulars detailing the information collection process which AFACT had used to discover which IP addresses had been allegedly downloading and making pirated titles available online and the ISP also had access to an affidavit that described how two investigators acting for AFACT had themselves acted as infringers on the iiNet network, it should have had the information it needed to make the decision.

"How you cannot admit that films are being made available online is, quite frankly, beyond us," AFACT counsel Tony Bannon said. He believed it was a stalling tactic: "As soon as they admit there are infringements going on in their system and they do nothing, the authorisation case is almost a shut door."

Yet iiNet's counsel Richard Cobden said that he had only received an amended particulars document which he described as "thin but sufficient" on 18 March. The document had also been labelled confidential, he said, which had precluded him from showing it to professional advisors, which has since been rectified.

Now that iiNet had the necessary information, it was prepared to make its decision on whether it was denying or admitting infringement on 1 April, Cobden said.

"What we appear to be accused of is the crime of being too helpful," he told Justice Cowdroy. "We are not obliged to admit [our users infringing copyright]. [AFACT] must demonstrate primary infringements. If we choose to not admit it then they have to prove them."

iiNet also said that it could fight the fact that users had infringed by questioning that they were transmitting copies of films to the "public", since they were one-to-one transmission or because the films were broken into small packets which would mean that no one user was transmitting a "substantial" part of a film.

Bannon was concerned that iiNet's answer would still be unsatisfactory since it might focus on such legal issues and asked Justice Cowdroy to amend the requested order to state that iiNet must say whether it admitted factually that its users were infringing as well as addressing legal issues. Cowdroy agreed, and said he would make an order that iiNet provide information by 1 April as it had said.

During the hearing the iiNet counsel also questioned whether parts of the AFACT case should be put to bed before the trial started, such as one which alleged that the iiNet users would make copies on DVDs.

iiNet said that there was no proof of any one instance where this had occurred, but AFACT's counsel countered by saying copying films to DVDs was "a notorious practice" which could be expected if people were infringing copyright by downloading films. "It's not a far-fetched inference by any means," Bannon said.

Justice Cowdroy reserved his judgement on those issues and will not make orders until a later date.

Topics: Piracy, Government AU, Legal, Security, Telcos

Suzanne Tindal

About Suzanne Tindal

Suzanne Tindal cut her teeth at as the site's telecommunications reporter, a role that saw her break some of the biggest stories associated with the National Broadband Network process. She then turned her attention to all matters in government and corporate ICT circles. Now she's taking on the whole gamut as news editor for the site.

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  • Idiots

    AFACT et al are morons. They are just going to make the situation worse. Whether true or not, it is commonly believed that artists make their money from tours and that most of CD revenue is taken by the record studios. Who wants to help fund ridiculous law suits like this?

    Years ago people used to love particular studios (remember Mushroom?). Now people see them on par with banks.
  • Get it Up You

    Everyone do their bit, fill your drives.
  • Burnning DVDs lol

    I been downloading movies and TV shows for over 8 years and i think i have burn to DVD all of 3 times.

    The entertainment industry has no clue how to respond to new technology or make best use of it.
    The internet is in essence a network of copying than relaying information. To stop that you may as well take down the whole internet and not just a ISP.

    Also correct me if i am wrong but doesn't blank media already carry a tax to reimburse copyright holders.
  • I love iiNet

    I swear, I'm seriously thinking of switching to iiNet just because of this and their stance on the internet filter. Not for a technical reason, but an ideological one. It's fantastic!
  • AFACT should be thanked

    AFACT are acting in the public interest by bringing to the attention of the general public the idea that TV shows and movies can be downloaded from the Internet. For free.

    The best part is that they will go over your ISP rather than person downloading the files so you are entirely safe.
  • Profits?

    Since when did downloading a movie mean making a profit? Torrents are this centuries version of copying VHS. In the old days people would copy a movie and pass it on to friends, now its just a bit more sophisticated. This theory that Hollywood has that every download is a lost sale doesn't even come close to reality. The Dark Knight was a huge blockbuster and was heavily downloaded as well. Its not downloading that is hurting your profits, it focus groups and crap films!

    Get a grip and get over it, shutting down the Internet (the only way to truly stop file sharing) will not increase your profits.

    Get with the program and concentrate on your content and the dollars will follow, file sharing wont go away, just accept the fact and move on.
  • "Fighting Fund"??

    iiNet needs to set up some sort of way where the outraged masses can donate a few bucks here and there to go directly toward this legal defence, because make no mistake: if iiNet can't beat off this attack, then the precedent is set, and every ISP in the country is going to start cutting off users on the first sign of a copyright infringement notice from the polic... err AFACT.
  • Not all ISP's

    No not all ISP's, Telstra will be exempt.

    Why, because remember Telstra don't have any savvy clients who actually know how to download data, they just have old people who don't know any better.

    Thats what guys like you say on Hackettpool all the time, to explain why Telstra are the leaders.

    Or will that excuse change now?
  • Telstra is not exempt

    In fact Telstra is so afraid if iinet loses this case its open season for all the ISP to be sued.
    Telstra has opened up its legal team to iinet.
  • Go get them AFACT

    You have every right to protect your interests and it's obvious iiNet will do everything possible to protect themassive profits they are making thanks to piracy.
  • Make something worth paying for?

    And people will pay, most movies / music / games etc are crap these days...

    if i download a movie and find it good, heck i'll go buy a copy, same with a song or a game...

    If these companies got off their asses and made some decent stuff they'll get A LOT more sales than making the crap they do and then winging when no one buys it!
  • Evidence gathered form of wire tapping?

    I wonder if the court will allow AFACT's use of hire online investigators DtecNet evidence as it's technically illegal due to it been a form of wire tapping as it's an interception of data.

    I would of thought that DteacNet practise was a form of data mining or packet interception that would be considered wire tapping under the act and therefore illegal in it's own right with the authority given by a judge in a court of law -eg a warrant issued.

    AFACT should not be above the law if they have broken the law themselves to obtain evidence.
  • ?

    I couldn't find Hackettpool is it on TV or something?
  • ?

    it should be on TV, on the comedy channel, as it is becoming funnier by the day.

    or maybe try
  • @Telstra is not exempt

    As I thought, the excuse has changed.
  • No CD/DVD or movie tickets for me!

    Well I for one will not buy any CD/DVD or movie tickets until this thing is over. Depending on the outcome, I may never again buy one.
  • Hear hear

    Good point. We should all unite and do the same.

    Hmmm, bans, uniting & protesting because you actually believe in a cause, refuse to be pushed any more and say enough is enough! Sounds like unionism.

    Seriously though, good point.
  • Interesting parallel case

    There is an interesting development going on in the US regarding copyright infringement. Although what happens in the US does not automatically translate here, it does provide food for thought.

    In a nutshell, in the Sony vs Tenenbaum case, questions are being asked about the appropriateness of having fines of up to $150,000 for pirating a 99 cent MP3 file. In all other avenues of justice, we have the principle of the punishment fitting the crime. What is the penalty for pirating a $30 DVD?
  • Telstra are helping iinet

    Actually mate you will find Telstra are providing legal and technical assistance to iinet on this one. Do a quick google search. For once in their life Telstra are the good guys - guess they can see the writing on the wall if iinet looses.
  • AFACT seem surprised

    The part that I find incredible is that AFACT seem surprised that iinet is digging in its heels and refusing to make admissions.

    "We are suing you, why are you making it so hard for us to sue you?"

    Well Duh.