iiNet piracy liability looms large

iiNet piracy liability looms large

Summary: The Federal Court today turned down iiNet's request to limit the consequences of the court case brought against it by the Australian Federation Against Copyright Theft (AFACT) to 86 films.


The Federal Court today turned down iiNet's request to limit the consequences of the court case brought against it by the Australian Federation Against Copyright Theft (AFACT) to 86 films.

(My DVD Collection (pt.2) image by Andres Rueda, CC2.0)

AFACT's evidence of copyright infringement consists of records of particular IP addresses of iiNet customers making a particular 86 films available online.

Yet AFACT's members have a lot more films (and television shows) on their catalogues which could be affected by any decision the court makes on the issue.

Since AFACT has already said in past hearings that it didn't intend on adding any more to titles to the list of identified films, iiNet had held fast to the line that any subsequent hearings on the matter should be confined to those films.

AFACT complained, however, that limiting the scope would also limit the relief to which its members would be entitled.

Despite iiNet's defiance, Justice Cowdroy said in court today that it wouldn't be appropriate for the hearing to be limited to those films, pointing to similar cases Kazaa and Universial Music versus Cooper where a subset of infringements heard in a case was used as a basis for court orders to be made on the whole catalogue.

Cowdroy also made decisions on other matters. He said that despite iiNet's conviction that AFACT had no proof that its users were making physical copies, the matter would not be dropped before the hearing began. He also ordered that AFACT provide more information on one part of its case.

Future hearing dates for the case were discussed as Justice Cowdroy expressed concern that the matter might run longer than anticipated. He wanted to settle dates in November when the case could be heard to its conclusion without breaks. He considered such a technical case to be better heard all together.

However, because of time pressures from other cases for the legal teams of both parties, November couldn't be decided on today. The parties said they would discuss possible times for hearings further. Cowdroy expressed the concern that if no time was found, the end of the case could end up being heard after January 2010.

AFACT alleges that iiNet allowed its users to download and make available pirated films via its network. It alleges that despite receiving infringement notices, the internet services provider did nothing to stop the infringement occurring.

Topics: Telcos, Government AU, Legal

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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  • IINet piracy

    Does this mean Australia Post is liable for copyright breach if someone posts a pirated DVD to someone else. Australia Post as the conduit of transfering the media is no different than iiNets broadband service???
  • iinet file sharing

    It could be said that Austarlia Post actively encouraged illegal movie sharing by failing to prevent users from posting pirated movies
  • Leeches

    The word leech comes to mind. Seriously how could providing someone with an internet connection mean they are directly providing/assisting the customers with illegal material.

    I like iiNet's analogy of the electric companies not being liable for what people do with electricity and people who lay roads not being liable for what people do on roads.
  • Why stop at ISPs?

    Why not sue the electricity companies? After all, the PCs that are involved in this illegal activity are getting their power from somewhere.
  • australia post

    Even worse, it actively encouraged it by providing boxes specifically designed to post DVD's in.
  • Judge out of his depth

    Does anyone else get the impression that teh judge is out of his depth. By citing Kazaa etc has he already made up his mind? The two are not the same and this judgement has the ability (if it goes against iiNet) to place a filter on our internet connections much worse than proposed by that idiot conroy
  • What should iinet have done?

    Going back to the origins of this case, I seem to remember that iinet, having been informed of the alleged transgressions, passed on the complaints to the authorities. After all, they are not required to police the network and certainly not required to disconnect users on the say-so of the movie companies' allegations. In fact, without the hard evidence of a conviction, they would probably be in breach of contract if they did. This sounds way too much like the French 'three strikes' law, only introduced by subterfuge,
  • Get it Right

    The biggest reasons I download things are

    1. These companies in their attempts to protect themselves and maximise profits they make life way too difficult and dangereous for the consumers.

    2. Its just not that easy to buy something you want in the format or style you want it. If at all. For example Naruto only became available to Australia since an American company bought the copyright to the English dubbed episodes. The english voices are soo bad!! And the episodes are like 4 years behind. The irony is that the American company bought the copyright off the back off the bittorrent downloading popularity. It is a great way of seeing true, free market research. Also the Japanese didn't care until the American bought the copyright as it was allowing them to get more exposure and was a major factor in an American company picking it up. Hey it would be cheaper for me to buy a box set rather than pay all this crap to phone/ computer companies just so i can watch the shows i want to without adds and in the language of choice.

    3. I use a lot of these bad quality downloads as previews. I mean who wants to download a HD movie. Its just too expensive to download on your quota. Its cheaper to buy. If the movie is worth it i will buy it.

    No company who makes good movies needs to say oh we lost this much money because of piracy. People would never watch your BAD movies if they couldn't download them for free. Its not bankable losses idiots!!

    On a final note the HD world will make the cost of downloading true HD formats way to expensive anyway. As far as music goes the only reason people are not buying it is either you make it too hard to use or too risky with hidden costs and confusing T&C's.

    If iinet doesn't stop you old school bankers who will??

    If they lose the court battle they will lose all their customers. Period. And these movie companies will be complaining we are not watching their movies because of the FC.

    Then Obama u can pay 150,000 per mp3 to bail them out. Seriously the world is run by people who think unlike the rest of all of us.
  • Get into the Future

    Its funny what u say Dave, i think i pay more in internet and hardware costs associated with these few crap movies.

    I have seen every good movie I previewed via bittorrent and I have bought a blue ray of the keepers. I dont want to download 9 GB for a movie. It would be easier to hire it out and copy it. Its just not worth downloading.

    These guys need to get into bed together as iinet are providing a better service and collecting all the service fee. If i could pay a subscription for these substandard formats with my internet provider then it would be worth it.

    Get into the Future Movie Companies

    Dont kill an industry to try and protect the small margin being lost. Look at the big picture.
  • where to from here?

    So if iinet is found to be negligent of its responsabilities to uphold copyright law on its networks, will this case follow the examples set by similar cases in the US, where universities were ordered to give over the personal details behind the infringing IP addresses on their networks?

    1) if this is the case, and noting that in one example i believe most of those involved (about 25 people) settled out of court for several thousand dollars each for their infringements, then given this, there could be potentially tens of thousands of multiple offenders waiting to be ordered to pay out.

    2) If that is the case, then given that many networks remain insecure to drive-by wifi usage, and i believe iinet do not support home networks of their users, how will mrs robinson be able to defend against a copyright infringement claim if the local nerds down the road hacked their way onto her iinet connection and left the torrents running day-in day-out ?
    As an IT tech, i hear about this sort of thing happening often.

    The consequences here seem pretty far reaching-
  • Madness?

    Watching this unfold is like watching a bad movie. AFACT should have submitted it's complaints directly to the authorities and let them investigate (that is what they get paid for, right??).

    Instead they pick the soft target as a test case hoping to change the way an entire industry works and making the ISP the bad guy, the police, the judge/jury/executioner.

    I can't see how they can win this, there is a legal mechanism in place to deal with illegal acts. Whether on the first judgement or appeal, this must be thrown down...
  • This is a Civil case, not criminal.

    In a criminal case, the defendant is innocent until proven guilty beyond reasonable doubt.

    In a civil case, the decision is based on the balance of probability, i.e., if iiNet probably were aware their users were uploading these movies, then they are libel.

    It's just like the O.J. Simpson case, found not guilty in the criminal court, but guilty in the civil courts because he probably did the crime.

    iiNets defence was they forwarded the allegations to the W.A police, however, if they didn't also include the details of the user account that was issued with the IP address used, then they will be libel.

    It's no different to a Telstra technician listening in on a phone conversation for quality testing, which they do, and overhearing the details of a crime such as copyright infringement. Telstra would be obligated to report the infringement. Just as we all are, to do otherwise, is aiding and abetting said crime.

    Same as the roads. If a crime was detected via the traffic regulating CCTV's they would be obligated to report the crime.

    Carriers, be they telstra, roads or ISP's are not libel for the crimes committed on their networks that they are unaware of, unless they become aware of such crimes being committed. Once they become aware of such crimes, such as notification by AFAT, they do become libel unless they pass all the information on to the authority's.
  • Rubbish...

    iiNet should not be liable if they followed their duty of care.

    iiNet's duty of care was to pass the details of the reported infringements to the WA police.

    iiNet is bound by confidentiality with their customers and providing person & privileged information to the police would be in breach of their agreement with their customers. They would be liable for any confidentiality breach from their clients and then could be found liable for damages as the result of the breach - payable to their customers who might get sued.

    Passing the infringement information to their customers would be at their discretion only, and is not required by law.

    In the event that the provided information from AFACT was enough to constitute investigation from the police, then the police would need to seek a warrant from a judge/magistrate demanding the personal information from iiNet.

    AFACT are attempting to circumvent normal procedure by going directly to iiNet as it would not be economically viable for them to subpoena the information for every individual in breach of copyright laws / license agreements. iiNet have no committed an offence.

    The doctrines of actus reus & mens rea (in criminal law) requires the criminal thought pattern behind a crime as well as the crime being committed. Whilst this is a civil case, these rules of common law still apply.

    iiNet did not intend it's service to be used for illegal activities, and has in it's terms of service (that each client must agree to) forbidding such activity, and that any illegal activities will be reported to authorities. - Which they did.

    The main question AFACT has as their foundation of their case is 'did iiNet actively support the breach of copyright on their network'. If there is proof of iiNet actively supporting the downloading and distribution of pirated material, then they will be liable.

    The main emphasis is on the '...actively supported..' That is the case in a nut-shell.

    iiNet would be stupid to '...actively support...' copyright infringement. iiNet isnt stupid. Therefore AFACT doesn't have much of a case unless they find a dumbfounded judge who takes US precedence into account - which would be only vaguely related (Kazaa etc).
  • The word is "liable" not "libel".

    In any case, the allegations of AFACT is not the same as iiNet becoming "aware" of crimes being committed. They were made aware of *allegations* of crimes being committed, sure. But unless they are actually monitoring the traffic directly, all they've got is the allegations of AFACT and it's members.

    Would you expect Australia Post to open up any mail that you post that is DVD-shaped, even if AFACT has told them that you've been sending illegal DVDs via the post?
  • the conclusion?

    Interesting comments-
    "if they didn't also include the details of the user account that was issued with the IP address used, then they will be libel."

    i would assume they will be libel then, since this all started months ago, if the federal police had all those details,i assume they would be requred to act also, thus i would expect to be reading about peoples houses being raided or warnings given by now otherwise-
  • iiNet piracy

    The difference is that Oz Post dont knowlingly do so whereas iiNet know and do nothing about it. They also chose to do nothing when when alerted to the infringing behaviour of their clients.
  • iiNet piracy

    iiNet does not know what user does. They provide with the access to the internet.
  • Duty of care

    >iiNet's duty of care was to pass the details of the reported infringements to the WA police.

    And this is exactly what they have done in every instance where a distributor has contacted them company to report copyright infringement.
  • Doesn't matter

    "It's no different to a Telstra technician listening in on a phone conversation for quality testing, which they do, and overhearing the details of a crime such as copyright infringement. Telstra would be obligated to report the infringement."

    That's not a valid comparison. If I told a Telstra employee that someone was using their phone service to commit a crime, would Telstra be obligated to listen in on that person's conversions to determine whether my allegations are true, and then report them to the authorities?

    Or, perhaps the Telstra employee should just report the person to the authorities on my say-so?

    iiNet do not, and CAN NOT "listen in" on every user's data connection. Just like Telstra do not "listen in" on every telephone conversation.

    Just becase AFACT have said "hey, this person is committing a crime while using your network" doesn't mean iiNet should have to do ANYTHING. Just like if I told Telstra, "hey, this person is committing a crime while using your telephone service" doesn't mean Telstra should do anything.
  • Can it just end there?

    "iiNet do not, and CAN NOT "listen in" on every user's data connection. Just like Telstra do not "listen in" on every telephone conversation"

    Yep, i agree, iinet are not the police, and even if they were, they would still need proper authority to do so-

    question remains though, as questioned above, why is it that if the police 'DO' have evidence of (mass?) copyright infringement crime, why are they not acting on this information ? Are they not aiding/abeting if they sit back and o nothing?