High Court day 3: AFACT's final pitch

High Court day 3: AFACT's final pitch

Summary: It would be in iiNet's economic interest to stop people using BitTorrent, because it is such a bandwidth hog, the court heard on the final day of the High Court hearing between iiNet and the consortium of film and television studios known as the Australian Federation Against Copyright Theft (AFACT).


It would be in iiNet's economic interest to stop people using BitTorrent, because it is such a bandwidth hog, the court heard on the final day of the High Court hearing between iiNet and the consortium of film and television studios known as the Australian Federation Against Copyright Theft (AFACT).

The final day of the copyright infringement-authorisation case was shorter than the previous two days, running for just over two hours. Most of the time was dedicated to AFACT counsel Tony Bannon making the case that when iiNet allows a customer to keep sharing a copyright-protected film through BitTorrent, the internet service provider (ISP) is authorising that infringement. While iiNet has argued in the hearing that acting on infringement notices would incur a cost for the ISP that would be unreasonable to bear alone, Bannon said that it is in iiNet's "commercial interest" to get customers to stop using BitTorrent, because it uses so much bandwidth.

"The pursuit of steps to rid their system of infringers would produce on the basis of that argument a net economic benefit," he said. "That is one factor which would have had to have been weighed in to the equation if anyone had stepped into the witness box to address this issue. Another factor is ... that Freezone is something that they sought to make commercial value out of by selling, inter alia, authorised copies of films by Apple's iTunes. So that, again, on the basis of that, one might expect or infer that the ridding, the encouragement of their users to not use authorised films but to take up Freezone for it, is again part of the equation as to what the net cost was."

He said that the fact that iiNet never addressed this in evidence means that the ISP doesn't believe that it would have a favourable outcome.

iiNet and the Communications Alliance both argued strongly on the second day that an ISP has no control over whether a customer uses a BitTorrent client to download a film, and thereby infringe on copyright. On Friday, Bannon told the High Court that an ISP gains control over the customer once the first infringement notice has been received. Any further infringement is then authorised by the ISP, he argued.

"Although they are not a determiner of the content, once they know the content and they are an actor directly in making the infringing act happen, and they have the element of relationship and control, then they are caught, unless there is a reasonable step to be taken," he said.

The previous day, iiNet counsel Richard Cobden had argued that iiNet would need to monitor its customers' internet activities in order to proactively prevent copyright infringement, and that this is not possible, due to the privacy provisions in the Telecommunications Act. Bannon yesterday told the judges that if iiNet had implemented a warning system to pass on infringement notices, similar to Westnet before iiNet acquired it, then it would not need to "snoop" on its customers.

"They did not have to be proactive to monitor its service, or to seek facts to indicate infringing activity, but that is in the context of that section which requires a repeat infringer policy and, namely, the whole scheme envisages that they would have to act on notice they received. In other words, they did not have to be Sherlock Holmes themselves, but if they were armed with knowledge, then they were caught," he said.

Chief Justice Robert French reserved the High Court's ruling, and the judgment is expected to be handed down in early 2012.

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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  • Why don't AFACT tell the truth.. they just want to be able to rip as much money as they can from everyone. This whole thing is about making the movie companies a sh#t load richer than they already are.
  • Yep..
  • If the court accepts that the isps cannot 'sniff' out its naughty customers due to provisions in the Privacy Act then when can we expect the principals (no ironic pun intended) of AFACT and their 'sniffing' hired spies to be prosecuted for doing exactly the same to get their tainted data? Hmmm? Just sayin'...
  • If a torrent user sets up the client property BTs are not the resource hog that is being claimed. Many huge Linux-related files are BTed around the place, with no significant impact on bandwidth. Video streaming is the killer. What really strikes me as strange is that companies like Apple and Sony produce hardware for copying discs and then as "distributors" try to stop you from using that same hardware.

    I was sent a huge BT link that took three days at max (yes, it did block bandwidth because I was told it was important, so opened up more ports). It turned out to be the floor plans (all 200+) of WTC Towers 1 & 2. They were useless to me, and to my hard disc. [DEL] came in handy.
  • AFACT is right - ISPs should stop us all using BitTorrent so they can save some bandwidth.
    And then block Youtube. Oh, and Windows Updates are pretty big and disorganised too - they should be banned too.
    And why on earth does everyone use a different anti-virus. We should all use the one our ISP chooses for us, since that would save the ISP a whole stack of bandwidth too.
  • HHmm. I think we're losing sight of the real picture here. In my opinion, the question is still, can ISP's really be held responsible for what goes on in the service they provide? Even worse, should they be asked to "spy" on their users as AFACT is clearly allowed to do? I think the answer to both is "no". Holden is not responsible is a Commodore is used as a getaway car in a heist, Telstra is not responsible if people using their phone network use it to conspire to commit a crime.

    I'm really surprised it's been allowed to get this far in the first place. If AFACT have a beef with people, go after the people. Using an ISP as a middle man and saying it's their fault makes my mind boggle that this seems to be an accepted argument in the first place.
  • I am also amazed this even got this far. Ramrunner is 100% correct. NO car company is held responsible for any crimes commited in one of their vehicles, NO telco is responsible for any conversations held over their systyems in order to plan a crime... So how can an ISP be held accountable for ANYTHING it's customers do on their HOME computer in the privacy of their own home?

    Hmm.. Is AFACT in league with those who want to filter the internet??????
  • Heh... if it's the case that it is the fault of the ISPs, then what is stopping convicted hackers, pedophiles and other online criminals from taking THEIR ISPs to court:

    "Clearly, Your Honour, I'm the innocent party here! If (insert ISP name here) hadn't provided me access to the Internet, then I wouldn't have been caught (insert criminal charge here) in the first place!"
  • What a stupid argument! I'm surprised the judges gave Bannon the time of day. To suggest that getting your customers to use less of your product is in your commercial interest is absurd.

    Presumably AFACT could solve their whole problem by just not producing new films. None of that huge cost associated with scripts, actors, location, cameras, etc, etc. Their costs would just plummet. No doubt it's in their "commercial interest".
  • I'm not arguing that on a technical level the vast majority of people use Bittorrent for illegal purposes. But most people I know who download a music or a movie......buy the cd or dvd if they like it.

    Also there are major companies that do use Bittorent to deliver patches and so forth, if IINet is forced to do this then they are essentially forcing those companies to pay huge amounts of money for content delivery rather than what is in place atm, a peer delivery system.

    Most of my friends on IINet are a customer for the benefit of a freedom based network (to some degree). If they start being 'big brother' a lot of their customers will leave.