iiNet plugged into users, piracy: AFACT

iiNet plugged into users, piracy: AFACT

Summary: Lawyers for the Australian Federation Against Copyright Theft (AFACT) have said that iiNet authorised users' copyright infringements, because although it was in close communication with users and knew of their infringing activities, it did not act.

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Lawyers for the Australian Federation Against Copyright Theft (AFACT) have said that iiNet authorised users' copyright infringements, because although it was in close communication with users and knew of their infringing activities, it did not act.

AFACT, representing film and TV studios, first took iiNet to court back in November 2008, arguing that the internet service provider (ISP) infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers copying films and TV shows over its network. The judge ruled in favour of iiNet, saying that the ISP did not authorise its users' infringement of the studios' copyright.

AFACT decided to appeal and the case is being heard this week.

There was a "fundamental error" in Judge Cowdroy's original ruling in that he ruled that iiNet was not responsible for the infringements that occurred on its facilities, according to Catterns.

For 59 weeks, AFACT sent letters and DVDs to iiNet on a weekly basis containing information pertaining to identified copyright infringements carried out by the IP addresses of iiNet customers. Catterns said that iiNet had enough knowledge based on that information to act to prevent infringements. In the original trial, Malone argued — and Judge Cowdery agreed — that knowledge could only come from a court order, and to act otherwise would be "doing AFACT's job for them".

AFACT's legal team had received access to the records of 20 iiNet customer accounts in the original case. iiNet had previously argued that providing account information was in breach of the 1997 Telecommunications Act; however, AFACT specified it only wanted access to de-identified information that could link file-sharing activity to certain IP addresses. A confidentiality agreement had to be struck to ensure the protection of customers' identities.

In his opening argument, AFACT barrister David Catterns singled out one infringing user known as "RC-08", who he said had seeded 40 copyrighted works using BitTorrent between November 2008 and July 2009.

iiNet's contact with the customer, including communications to give them more download quota, was regular enough that the carrier could have acted to prevent further infringement, according to Catterns.

In that time, according to Catterns, iiNet had advised RC-08 when their account was shaped because the user had gone over their monthly download limit. After repeated instances of going over the quota, iiNet advised the customer to upgrade their plan to "get more of the stuff you love".

Catterns argued that iiNet users weren't simply "hooked into the wires and left to go off on their own".

The barrister argued that actions iiNet should have used included shaping, warnings, playpenning and suspending users who have been identified to have infringed copyright laws.

He pointed out that iiNet had a policy in place and had previously disconnected customers who were using its facilities to spam and said the same rule should have applied to customers infringing on copyright.

However, iiNet has always argued that it is simply providing a service to its customers, and has baulked at punishing them based on AFACT's notifications, instead forwarding the notices on to police. It has even argued that using customer information to act on the infringement notices as AFACT wished would be breaching the Privacy Act.

Topics: Legal, Government AU, Telcos

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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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9 comments
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  • I think iiNet's defence would still apply here. Just because AFACT sent them Letters and DVD's for 59 weeks does not prove that anyone was in fact infringing on copyright, that should only be able to be decided by a court of law.
    m00nh34d
  • Agreed moonhead.
    Jones-eafe7
  • Yawn, haven't we had this case already. And for reference AFACT ..

    "The barrister argued that actions iiNet should have used included shaping, warnings, playpenning and suspending users who have been identified to have infringed copyright laws.
    He pointed out that iiNet had a policy in place and had previously disconnected customers who were using its facilities to spam and said the same rule should have applied to customers infringing on copyright."

    Users who are disconnected for using iiNet's systems to spam are proven by iiNet to have committed this offense. Sending a few emails with IP addresses and times does not prove copyright violation, hence iiNet didn't disconnect any users. This may be beginning to sound like a broken record but AFACT you need to PROVE THAT A COPYRIGHT VIOLATION HAS TAKEN PLACE, and you need to do it through the legal system. This case is purely a waste of time and money, for both sides.
    Tezmyster
  • So... now apparently iinet suggesting that a user increase their plan (aka, upselling, aka doing business) is authorizing pirate activities? Because, iinet must know that it is a person downloading illegal content if they exceed their quota, I mean, there is nothing else on the internet, NOTHING, that could concievably result in any downloading of data.

    Seriously, go die in a hole, AFACT, nobody wants you here.
    tpontin
  • Not that I'm disagreeing with you that AFACT need to prove their case, but ..

    "Because, iinet must know that it is a person downloading illegal content if they exceed their quota, I mean, there is nothing else on the internet, NOTHING, that could concievably result in any downloading of data."

    AFACTs case has nothing to do with usage limits and/or how it's used. They are taking IPs off the torrent tracker list they see and noting down the time, so as far as AFACT is concerned that IP downloaded whatever copyrighted material at that time. And that is the information they have been forwarding to iiNet. In reality they probably do have a case, but the argument that iiNet should be enforcing the law without due legal course is where is flawed.

    Don't get me wrong, argue against AFACT, but understand the case because the points you are arguing against have nothing to do with the case.
    Tezmyster
  • I've been over my quota limit! Does that mean I must be pirating?
    I use bit torrents for numerous downloads including Linux distributions etc, does that mean I'm pirating?
    AFACT need to get real, and work on distributing media in a way that is economical and available to end users. Have legal download service available so people can legally download a movie or music or what ever, rather than having limited availability and over priced products, in limited outlets.
    The numerous groups could be setting up a multimillion dollar business venture with electronic access and distribution etc rather with the money they waste over so called pirating..
    anonymous
  • AFACT you stink.
    You and the greedy bastards you represent can go to hell.
    Yoda7
  • I'm not a lawyer, but I didn't think you were allowed to present NEW evidence in an appeal, are you? An appeal is just where you take your case to a higher court because you believe the lower court's judge did not apply the law correctly, not because you've suddenly found some new evidence supporting your case...
    Dean Harding
  • I think it's AFACT that has the "fundamental error".

    iiNet doesn't have to do what AFACT tells them without a court order, AFACT is NOT a law enforcement body, it's the copyright suing arm of a collective made up from: Walt Disney Studios Home Entertainment, Fox Movies, Paramount, Road Show Entertainment, Sony Pictures, Universal Pictures, Warner Bros and the Motion Picture Association International.

    Those are some powerful companies, but they still need to do things legally (like getting a court order to have users disconnected....
    Tinman_au