iiNet vs. AFACT: Battlelines drawn

iiNet vs. AFACT: Battlelines drawn

Summary: In a hearing today, iiNet laid out the issues on which it will fight the Australian Federation Against Copyright Theft and those it will concede.


In a hearing today, iiNet laid out the issues on which it will fight the Australian Federation Against Copyright Theft, and those it will concede.

AFACT filed the case last year after iiNet allegedly failed to act on notices of infringement — noting IP addresses of infringers and the pirated movies they were accessing — which AFACT sent over an 18-week period.

When Justice Cowdroy started the directions hearing, he remarked that the multitude of writing on the case could be summarised into key issues, and asked the AFACT counsel Christian Dimitriadis to lay out them before him.

Dimitriadis said iiNet was not disputing that copyright for the titles which had been allegedly pirated existed, so that would not be an issue.

The three issues he then identified to be in question were whether iiNet authorises the acts of infringement, whether it was not liable if its customers infringed on copyright, and whether the Safe Harbour provisions of the Copyright Act would protect it against needing to carry out actions such as cutting off infringing customers.

"There are other peripheral issues perhaps, but those are the key issues," Dimitriadis said. These issues were also addressed in the Kazaa and Cooper cases, where the defendant lost.

iiNet had, however, not yet decided whether it would accept that the users had been infringing copyright at all. This would depend on its examination of the information provided by AFACT on the Federation's technical investigations into users' infringements. AFACT had recently provided that to the ISP.

The judge made dates for the final filing of evidence and set a tentative booking for the final hearing, which the parties estimated would last for two weeks, at 5 October.

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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  • cool

    Yeah, iiNet are playing it cool. What they are saying is that it is not up to them to decide whether or not something their customers do is legal. Heck, what's next - banks held responsible for dispensing the cash used to buy drugs?

    The most that can be reasonably expected is for an ISP to report on activity that falls within certain parameters as set in legislation and to take action on any legal orders. As far as I know, none of those mechanisms are in place except for right holders to get a court order for each specific violation. Its obviously cheaper to try and badger the ISPs.

    This is an outright abuse of the legal system by AFACT to avoid the expense of having to go about things the right way i.e. lobby the government for legislative change and wear the cost of following up infringements. It would be great if iiNet had a case to counter sue AFACT for bringing such a baseless case against them.

    I dont think you can use Kazaa as a precedent here. They were not an ISP in the first place. I think the problem with Kazaa was that they did facilitate forums etc in which it was quite clear that the main use of the tool was for downloading copyrighted material.

    Of course, legislation is often poorly written and so iiNet may not win regarless of whether the decision is fair or not.
  • na

    So many entertainment and media sites on the Internet block Australians form watching and listening to there content.
    Its no wonder in the end people just pirate it!
    examples:, and thousands more.

    I have no sympathy for the copyright laws when they are just there to screw over and suck Australian dry!
    One rule for Americans, another rule for the rest of the world. Then they cry foul when no one wants play by American rules.

  • Can any one say “Responcible service of Alcohol”??

    Unless the bartender / ISP is holding a gun to my head and saying "Drink This". Then its my problem not thiers.
  • Bitter old media

    Old media is feeling the pain. There is a new paradigm of media in the works, streaming, p2p etc ... and the old media companies just don't know how to move quickly enough and make money off it, whilst the younger generation companies in the media industry are taking share. This is just a ploy. Just like the music industry the video and content industries are now feeling the pain.
    p2p, streaming video, these things will never go away. If only these old media companies would have moved faster and acted on the opportunities whilst they were still ripe, they wouldn't be in this mess.
  • Big Brother hmmmmmm

    Is it only me who has a problem with the thought of a movie company in the US demanding that an ISP in Australia breaches our privacy and watches what we do and where we go?

    Another point in all of this, I received an e-mail several years ago from my ISP warning me that movie piracy was illegal, I rang them and said "Yeah so, like I didn't now that" I was then informed that I had been downloading Movies from the US. Being as green as new blade grass when it came to the internet I asked the guy I was speaking to How do you download movies and where do you go to get them, I also made the point being on DIal Up it would take forever, he then told me it was probably someone using my connection along with several milloion other connections to avoid detection.

    The upside for me was I got a very interesting lesson on internet security.
  • Will be interesting case

    If iinet are found guilty of this offence i.e. users of their product doing illegal things without iinets knowledge or consent, it should set a very lucrative precedent for the legal fraternity.
    Next time I have a car crash I will sue the Federal and State Government for providing a road that someone broke the law on. Or if someone stabs someone with a knife THAT knife manufaturer can be sued for providing a medium to allow someone else to break the law....OOH WHAT A CAN OF WORMS.. I just trust the judge involved has more sense that a lot of judges have demonstrated in the past
  • Don't use lawyers to try to solve technical problems

    Is AFACT confused or what. Going to lawyers to try to solve a technical problem (piracy) is like going to a lawyer instead of physician when you are ill. Lawsuits do not solve the problem.

    There are technical solutions to the so called piracy problems employed by some of the smaller media companies with rather more technical knowledge.

    If the big media companies want to find out how to do this they can hire some consulting ENGINEERS in media technology!
  • AFACT is suing the wrong people

    As iinet suggested the electricty company example, you woudn't sue the electricy company for what people do with their power.

    Actually I think thats a great suggestion ^^. How dumb are the lawyers at AFACT? People can still pirate on other people connections or internet cafe, you didnt solve your problem at all, but if people dont have electricty its gonna to be much harder to use pirated material. The probably wont be able to use their compupter problems or even watched DVDs they burnt. They probably wont be even be able to burn DVDs.

    Evidently what they are after is trying to get a punishment set up to deter people..
  • It's NOT a technical problem

    "Piracy" is not a technical problem, using technology to solve the problem is just as wrong as using lawyers.

    This is a supply and demand problem. The marketplace wants to consume content at will (rather than on a schedule dictated by broadcasters) and at a reasonable cost. This demand pattern does not bode well for the distributors of the content and in an act of market manipulation, these people are trying to restrict supply in order to inflate prices. Clearly region coding and inability to legally download content from various geographical regions demonstrate their actions.

    A more constructive approach is required - the music industry took a long time to realise that lawyers and DRM just would not do it. Surely the movie industry does not need to make the same mistakes all over again.
  • Reasonal analogies required - not distorted ones spreading FUD

    It seems a lot of people are coming up with supposedly analogous situations that seem to provide some sort of reasoning for iinet to be off the hook. I think many totally miss the mark.

    As I understand the basic issues:

    1. iiNet has been notified of possible infringements involving sone of their customers by AFACT, with the expectation that iiNet will advise their customers (since only iiNet know who they actually are) of their obligations regarding copyright material.

    2. iiNet refused to do anything about the notices. The issue is whether iiNet is obliged to do so upon recipt of such notifications. Also, whether the notifications should be served by law enforcement officers.

    3. The closest analogy is that of an apartment owner (iiNet) letting out to a tenant, where a possible infringing activity has been identified as taking place in the apartment. The infringee (AFACT), not knowing the name of the tenant, has requested that the owner (iiNet) advise the tenant of their tenancy obligations.

    3. If iiNet has a duty to act upon the information, and refuses to do so, they may be construed as condoning the activity, and therefore may be legally complicit. Using the analogy, are their tenants making illegal DVD copies of a lot of copyright material.

    4. AFACT is not telling anyone what they cannot watch, as long as the appropriate rights have been obtained.

    5. The is no obligation for iiNet to monitor anyone. The partial identification has already been done external to iiNet. iiNet was requested to contact the actual persons (OR else advise AFACT that the addresses were not at iiNet).

    It all depends how much legal immunity is afforded to iinet as an ISP in this type of situation, and what their obligations are towards cooperating with avoiding illegal activity invloving their property.

    This case will help determine how much at arms length ISPs actually are from their customers. I would like to think that iiNet would respond if I lodged a complaint about one of their customers activities that may be affecting me, such as generating spam. I would not be going straight to the police necessarily, but may want to give the ISP the benefit of the doubt and a chance to determine if it IS actually one of their customers generating the spam. If they totally ignored me and told me to go to the police, I would not want to be with that ISP as I would expect the rest of their service to be having the same 'don't bother me' attitude.

    I have been to Body Corporates that do nothing about other unit dwellers who infringe upon their obligations. Living in those units can become a nightmare.
  • iiNet and AFACT

    By what means did AFACT acquire it's information? Is there a violation of privacy on AFACT's part?
  • information privacy + AFACT

    they simply log the IP address of the persons downloading content from a given website for example. then use readily available databases to find the user of that IP. if it's static AFACT would only have the name of the internet provider -- along with the time and date that address was used, the ISP can immediately determine who was using that IP at that time. alternatively, if you use a fixed IP like a corporate connection, AFACT would have the company name, and the system administrator would be able to search their logs for the user name (ie. don't risk downloading movies from your workplace).
  • Tall Poppy

    It's easy to criticise "old media" for missing the boat, but really this is just a poor attempt to validate piracy. This is not a technology issue, it's a legal issue. Media piracy has been around since day one. The only difference now is distribution. "Old" media, which is just another way of saying "Big" media has not been caught off-guard as such, but large companies can't (and shouldn't) just drop proven business models for the latest craze. The better strategy is to acquire other businesses doing that. News Corp and MySpace is a prominent example.

    IMO Old media is making the right move. Continue with the proven model. Protect this model where possible through legal action. Acquire growing businesses to position for trend shift down the line.

    Of course I could be wrong. Let's see who "Old Media" is in 10 years. I'm betting it's the same companies as today...
  • Trade Aggrement

    What many people do not know or understand is that the Trade agreement that was signed around 2007 (I think) with the US means that their copy right laws extend to here.
    e.g.: you can be legally expedited to the US to face copy right infringement charges.
    In face one man has already had this done (sorry can not remember the details, was almost a year ago).

    I have not idea if that is also the case with for only Criminal proceedings or if it includes civil suits. I would have thought that it would only be for criminal cases.

    Even so, based on this the charges are not criminal but civil suits. Which would fall, as iiNet as indicated out side of their responsibly. If it was criminal then it would be the AFP dealing with iiNet on behalf of the US entity.

    Speculation based on my little bits of knowledge, and a warning to those that are not aware of the trade agreement and it’s effect on Copy right laws.