iiNet judgement looms over ISPs' future

iiNet judgement looms over ISPs' future

Summary: Judgement for the "landmark" case of iiNet versus AFACT will come on Thursday, but with Senator Conroy, lobby groups, consumers and industry members all weighing in on the result, what might the case mean for digital piracy?


Judgement for the "landmark" case of iiNet versus AFACT will come on Thursday, but with Senator Conroy, lobby groups, consumers and industry members all weighing in on the result, what might the case mean for digital piracy?

iiNet court case

X-Men Origins
(Credit: 20th Century Fox)

Legal proceedings began between Perth-based internet service provider (ISP) iiNet and the Australian Federation Against Copyright Theft (AFACT) in November 2008, when the federation brought the case against iiNet for failing to pass on its copyright infringement notifications to the ISP's customers. AFACT represents its members which include Hollywood studios Village Roadshow, Disney Corporation, Fox and Universal as well as Channel Seven.

Sabiene Heindl, general manager of Music Industry Piracy Investigations (MIPI), supports AFACT and believes the judgement next Thursday will hopefully make ISPs more willing to engage in meaningful action towards countering digital piracy.

"The likelihood is we would expect to the see film industry successful in this court case. Our analysis has always been that ISPs must accept responsibility for infringements on their networks when it is brought to their attention," she said.

"In the Cooper case, which we took to court, both Cooper and the ISP were sued. The ISP was liable as it was aware and failed to take reasonable steps to address the copyright that was occurring. Likewise, iiNet has been put on notice of copyright infringement on its networks, but failed to adhere to its own terms and conditions and therefore we would say, has authorised copyright infringement."

Others, like president of the Pirate Party Australia David Crafti, believe the role of ISPs is to act as a utility, rather than police individuals using their services.

"We're hoping for ISPs to be recognised as just regular utilities and there shouldn't be a distinction based on the fact that they can inspect content. Australia Post also can't inspect content but that would be seen as a violation of privacy — we think ISPs should be treated the same way," Crafti said. "If ISPs aren't treated as utilities this case could have massive implications — people won't be allowed privacy, ISPs will be turned into internet cops."

AFACT had expected iiNet to act when its users infringed copyright. It had sent over 7500 breach notices to iiNet including the IP addresses of its customers that were allegedly using the ISP's internet access to infringe copyright.

It wanted the ISP to choose one of several options, which included giving the customer notice, capping download speeds, or suspending browsers or peer-to-peer services. Statements made by Village Roadshow's general counsel, Simon Phillipson, suggested Roadshow's decision to join in the litigation was cost-based, as ISP input was less costly for the studio than individual cases.

"Roadshow considered what an ISP could do, and the steps it could reasonably take without great cost or effort, and that was one of the factors in Roadshow considering this litigation," he said during the case. "That was a relatively cost efficient exercise and more cost efficient than Roadshow litigating against those individual users."

iiNet stands behind the Telecommunications Act as justification for not passing on notifications. Yet broadband minister Stephen Conroy has not ruled out the idea of legislative change to enlist ISPs.

"The court case may settle this issue..." he told ARN last December. "It may show to the world ISPs have got the responsibility to work with copyright owners to work out a solution or to monetise a solution."

Others also argue ISPs need greater governmental prodding, with RMIT general counsel, John Lambrick, also stating in December, "The Federal Government should not wait for a verdict in the AFACT legal action to provide a 'resolution' to the problem... The Federal Government should take action to legislate an effective solution that will facilitate downloader accountability and protect ISPs and other providers of communication infrastructure from liability."

Certainly all eyes are on the case, which may define the role of ISPs in years to come.

To see the progression of the trial, and for links to prior articles, see our iiTrial timeline.

Topics: Telcos, Government AU, Legal

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  • A Parade of Idiots.

    The Court is dumb, the Litigators are dumb, the minister is dumb.

    The parade of idiocy is breathtaking. All this will do, will encourage driving the uptake of encrypted technologies. PGP encrypted files distributed across encrypted VPN connections will prevent any unwanted intrusion.

    Not only do they fail to understand technology, they fail to understand that there are very easily accessible counter measures.
  • A lack of forward thinking

    The truth is that everyone involved has lost the plot. Peer to peer technologies are run on all networks world wide. The whole idea of the internet is finding a way to share information as quickly as possble to as many people as possible. Surely if they think this is going to stop people they a very wrong. A word to the wise, if the government intends to make headway in this they should employ a 14 year old consultant.
  • What is a strike anyway?

    So, considering there are countries that have succumed to the pressure of the movie companies (hello France) and implemented the infamous "3 strikes" rule I was wondering if there is any clear indication of what counts as a strike. Is it enough to have a copyright holder accuse you, or is further action required?
  • What is a strike anyway.

    As the legislation is written in other countries it is enough to be suspected of piracy, let alone actually be performing it.This is bad news for anyone who has not properly secured their network like my neighbor with their un-encrypted Motorola WAP. Still AFACT is 100% accurate when it pinpoints an IP address on the web, whether or not the owner of the router its attached to knows if anyone else is using it or not.
  • Guilty until proven innocent

    A customer of mine had an abnormally high usage rate for one month--he has no wireless connections.

    We contacted the IAP for access to usage logs and were told that such information was not available.

    So if someone else successfully used his account to download copyright materials how in Hades does he prove he didn't do it?

    Yes! I've downloaded 'copyright' material:
    a) I already own a hard copy that has failed--there are some very shoddily manufactured CDs out there.
    b) The material is not commercially available.
    c) The material is considered a preview and inspiration to go out and buy the legitimate product. Don't bitch about copyright on YouTube--many of those clips inspire people to go out and buy product. It worked for the Arctic Monkeys. They don't need representation by one of these archaic 'ownership' companies.