High Court day 1: iiNet's control over choice

High Court day 1: iiNet's control over choice

Summary: How much control does an internet service provider have over a customer's choice to infringe on copyright and what reasonable steps can it take to stop that infringement? These are the issues that the High Court addressed on the first day of the case between iiNet and the Australian Federation Against Copyright Theft.


How much control does an internet service provider (ISP) have over a customer's choice to infringe on copyright and what reasonable steps can it take to stop that infringement? These are the issues that the High Court addressed on the first day of the case between iiNet and the Australian Federation Against Copyright Theft (AFACT).

At the opening day of the High Court case determining whether iiNet authorised its customers' copyright infringement by inaction, AFACT counsel Tony Bannon took Chief Justice Robert French and Justices William Gummow, Kenneth Hayne, Susan Crennan and Susan Kiefel through an explanation of how a user obtains a film or TV show through a BitTorrent client, and how AFACT came to determine that iiNet customers were infringing on copyrighted material.

Using the examples of Top Gear and The Dark Knight, Bannon showed how the investigative firm Dtecnet determined that an IP address that was "seeding" the torrent file — that is making available an entire copy of the TV show or film — was from iiNet, and how this evidence was given to iiNet by AFACT, which wanted the ISP to take what it considered to be reasonable steps to prevent further copyright infringement.

Bannon told the court that iiNet had a variety of measures that were within its power to implement after receiving these notices, including passing on the warnings, suspending a users' account or handing over the customer details to AFACT.

"If [an ISP] were to say to them, 'This is an allegation' and if [a customer] came back and said, 'No, they're lying', and they say, 'Well, we'll let you two sort it out; we're going to hand your details over to the copyright owner unless you do something about it and we'll find out very quickly as to whether they really are lying'. In other words, that would be a very effective step, one might think," he said.

Crennan believed an ISP's control over its users actions over the internet could extend to ISPs notifying a user, with a following step of having the information passed on about the infringer to the copyright holder in the event of repeated infringements. But she raised concern that in any one household, if a customer's internet connection was suspended, one person's copyright infringement could impact on the rest of the house.

"It would be legitimate for them to be worried about substantiality issues, threats issues, in relation to termination — the whole issue about there being an account in relation to a household and perhaps only a member of the household engaging in the conduct complained of. There could be all sorts of issues which would bear on whether it is reasonable or not to terminate an account."

French questioned whether it would be a reasonable step for iiNet to simply pass on the notices without endorsing or confirming their validity.

"If iiNet sent to one of the addressees mentioned in the AFACT notice, having identified the customer, a notice saying 'We neither sanction, countenance nor approve your downloading films in which copyright subsists without paying for them' and that reflected its genuine position, is the fact that it does not follow up with enforcement relevant then to authorisation?"

Bannon said that would be insufficient because the ISP had not taken steps to prevent future infringements.

"[T]here is no doubt we said for all times, from the beginning of this case, that they should take a step at least of warning notices. Did we say that is enough? We never said that would necessarily be enough, that it depends, because we have not got to that situation yet, but we could not dictate."

Hayne said the case ultimately confronted the larger issue for copyright holders: how much control an ISP has over the individual choice of its customers in what they choose to use the service for, including downloading films and TV shows using BitTorrent.

"[I]t confronts the basic conundrums for the copyright holder. It is the existence of the network of networks, namely the net, which enables unauthorised sharing of copyright work. The prevention of it ultimately depends upon the individual choice of the user of the net. You seek to achieve the result through the medium of the company that provides access of the user to the network, and the conundrum is the power that the ISP has, the steps that the ISP can take depend ultimately for their effect on the individual user's choice, for all that the ISP can do is switch off."

Of the six organisations that had sought to intervene on the case, French ruled that only the Communications Alliance and the Australian Performing Rights Association should be heard on the basis that their submissions may assist the court. Submissions from the Australian Recording Industry Association; the Media, Entertainment and Arts Alliance; the Privacy Foundation and the Digital Alliance were all dismissed.

The full transcript of yesterday's hearing can be read here.

The case continues today. Stay tuned to ZDNet Australia for all the coverage.

Topics: Piracy, Government AU, Security, Telcos


Armed with a degree in Computer Science and a Masters in Journalism, Josh keeps a close eye on the telecommunications industry, the National Broadband Network, and all the goings on in government IT.

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  • I wonder if AFACT's next point of call will be electricity companies as they enable pirates to download illegally too by letting them buy their electricity.
  • Glad I download everything through my neighbours connection :)
    • PS thats a joke.
  • The ISP is the soft target, as they stand directly between the account holder and the net. The internet itself is clouded with corporate anonymity, as the huge players supplying the commercial bandwidth have a more present claim to safe haven. The ISP holds only the account holders details, not the infringers details. Identifying the infringer is also a problem not yet clarified in the case. AFACT would like us to all believe that identifying the account holder is sufficient for them to launch a recovery action, but I suspect this is the next hurdle, and unlikely to be resolved within the scope of the existing case.
  • Ridiculous!
    I have been known to make copies of some media I own (tapes/CDs/DVDs) & mail them to friends/relatives.
    Will AFACT now also require Aust Post to monitor all mail I send/receive & should I continue to 'infringe' then demand all postal service to my household be terminated?
    • Perhaps they would if there werent laws preventing them from opening peoples mail
      • Be careful... they might try to appeal that next...
  • It would be trival for the High Court, i would guess, to metion the the ISP Terms & Conditions. I bet you anything this will arise somewhere, given time.

    Doesn't it say in any ISP Terms and Conditions "Customers cannot use our network for illigal bechaviour" ? traffic is flowing through the ISP, to the customrs router, end point, or not. its still "technically" breakig this rule is it not ??

    Of couse, there is the other side of the story..... We all do it, coz ISP's allow us :)
  • Of couse, which way you look at this. it can only bed Digital mendia... online...

    No where can you prevent anyone from renting it, and copying the disc,
  • As AFACT are not immune to privacy laws, and they themselves are not law enforcement, if my ISP handed my details to AFACT without consent I would be suing the ISP as well as AFACT for breach of privacy. The bottom line is simple, if you want my details present my ISP with a court order and the authorities can have them, I would enjoy defending my innocence in a court of law.
  • I would like to know who protects the customer? When is the last time you got a refund for a **** movie? How about that music CD that is total crap? Try getting a refund for a game that is full of bugs ie BF3? I would also like to ask why Australians pay more for media products then other countries? Why does a digital download cost the same as a physical product? I for 1, can see why people download this stuff.