Just what is behind the iiNet case?

Just what is behind the iiNet case?

Summary: Landmark Federal Court legal action by the Australian Federation Against Copyright Theft (AFACT) against ISP iiNethighlights the competing interests of ISPs and rights holders in respect of unauthorised filesharing, and should expose the inability of the Australian Copyright Act to satisfactorily resolve the issue.


This commentary is by John Lambrick, the general counsel of RMIT University in Melbourne.

commentary Landmark Federal Court legal action by the Australian Federation Against Copyright Theft (AFACT) against ISP iiNet highlights the competing interests of ISPs and rights holders in respect of unauthorised filesharing, and should expose the inability of the Australian Copyright Act to satisfactorily resolve the issue.

AFACT will seek to establish that iiNet "authorised" a breach of copyright by failing to take steps to prevent iiNet's account holders from engaging in unlawful filesharing, and in particular by refusing to forward AFACT's complaints to the relevant account holders.

No doubt iiNet will argue that by referring the complaints to the police it complied with its obligations under the Copyright Act. However, even if iiNet is found to have "authorised" a breach by its account holders, iiNet will not be liable for damages if it complied with its obligations under the "safe harbour" provisions of the Act.

The best [AFACT] can probably hope for is an order that the infringing accounts be terminated.

The "safe harbour" provisions generally require ISPs to terminate the accounts of repeat infringers, but they do not require an ISP to do so merely on the basis of an assertion by a rights holder that a breach has occurred.

Importantly, the Act does not require ISPs to cooperate with rights holders, meaning that rights holders are ordinarily required to seek court orders to force ISPs to reveal the identity of unlawful downloaders so that the rights holders can take legal action against them.

Obviously, it is logistically and financially impossible for rights holders to deal with all infringers in this manner, and ISPs will quite reasonably argue that they would breach the privacy of their account holders by revealing details without a court order. AFACT has attempted to overcome this by requesting ISPs to onforward its complaints to the account holders.

This stalemate has led to the legal action by AFACT. Will it succeed? iiNet may be found to have "authorised" a breach by its account holders if the Court considers that iiNet acted unreasonably by not passing on AFACT's complaints.

iiNet may be in some trouble here by claiming that it acted appropriately by referring the complaints to the police. iiNet would know that unauthorised downloading (as distinct from distributing) is not a criminal offence, and it is no wonder that the police showed no interest in the matter. But in any event AFACT will not be entitled to damages. The best it can probably hope for is an order that the infringing accounts be terminated.

Apart from a general exercise in sabre rattling, the AFACT legal action may also be part of a strategy to require the Federal Government to force ISPs to cooperate with rights holders in an attempt to reduce unauthorised filesharing, as has occurred in the United Kingdom and in France.

Under the U.K. arrangement a memorandum of understanding has been signed between the government, ISPs and rights holders which initially involves rights holders identifying infringing use and requires the ISPs to then contact the relevant users. The scheme is still a work in progress and may be supplemented by legislation, but early indications are that it is having some effect.

Topics: Telcos, Government AU, Legal, Piracy

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  • Riiigghhhtt...

    So is the next step suing the power companies that provide the power to run the downloaders and the ISP's systems as an accessory? This is getting out of control... Methinks more imagination is required here.
  • Easy to Fix

    All the client software *torrents, limewire etc identify themselves in IP comms packets. It is a very simple matter for any ISP to filter these packets or associated ports. The very fact that they don't is guilt by neglect. As with the objections to the govs filtering/censorship tech, its a smokescreen to suggest its has negative tech consequences. Its about ethics and morals. Why are people supporting piracy? If we don't pay then stuff won't get made.
  • Filter Packets

    Filtering packets is not free, neither financially nor in terms of resources. As a result the consumer will pay. Explain to me why I should pay to protect the rights of the recording industry? This is like saying that the government supplies the roads which we pay for with our taxes, therefore the government must filter road traffic that may come to my house and possibly infringe upon my rights.

    The recording industry has no right to expect a 3rd party to protect their rights. That is a job for them in conjunction with the Police and the courts. Just as it would be for me if somebody were to infringe upon my rights.
  • Not all torrents are illegal!

    Anonymous above thinks that all download activity on torrents are illegal and expects the ISPs to simply block that. You forget the fact that you may be throwing the baby out with the bathwater, as there are a myriad of LEGAL torrents such as game patches, demos, legally distributed music and videos.

    What about the thriving open source community and free download sources? Are you suggesting all these people that contribute legal free content are queuing up at soup kitchens?
  • Censorship by Port Address?

    Censorship by Port Address?

    Sweet ...

    I guess that means that I will have to ask YOU for permission to connect to my home PC on a random port address of YOUR choosing?

    (Please define YOUR valid port address from the current (apporx) 65,000 available port addresses!)

    (You truly do not understand what you speakth of!)
  • Easy to fix? NOT

    Your comment that you should simply filter torrent packets is a load of rubbish. Torrents are not illegal, no matter how you spin your garbage. Using torrents to download copyrighted material is, but there are also legal torrents. For example, World of Warcraft uses a torrent system for patches . If you are going to blame someone, blame your own ignorance, not ISPs.
  • Paying for the Recording Industry

    "Explain to me why I should pay to protect the rights of the recording industry?"

    Its a scam they've been pulling for years around the world. Think of the levy they wanted to put on blank CDs in order to "offset the loss to piracy". They tried the same with blank video tapes. Some countries have even fallen for the con as well :-(
  • Research

    fortunately privacy is involved and companies will get sued for a breach of privacy once they start snoofing around individual ip packets. Not to mention that not all torrents are illegal
  • Please Clarify this point in the article

    'The "safe harbour" provisions generally require ISPs to terminate the accounts of repeat infringers,'

    Division 2AA—Limitation on remedies available against carriage service providers
    (4) For an infringement of copyright that occurs in the course of the carrying out of a Category B, C or D activity, the relief that a court may grant against a carriage service provider is limited to one or more of the following orders:

    (a) an order requiring the carriage service provider to remove or disable access to infringing copyright material, or to a reference to infringing copyright material;

    (b) an order requiring the carriage service provider to terminate a specified account; (MUST BE DETERMINED IN COURT, As pointed out in point 4)

    (c) some other less burdensome but comparably effective non‑monetary order if necessary.

    (Copyright Act 1968 Act No. 63 of 1968 as amended)

    The amended act requires a court order to terminate re-offending accounts. Why is getting a court order to protect someone elses rights iinets responsibility ?

    So your quote above is correct but not complete, yes they are required to terminate the account after repeat offenses have been proven in court.

    Also to the idiot suggesting banning Bit Torrent Traffic, the clients:
    1) Have substantial non-infringing uses (ie. Linux distribution, patches for World of Warcraft (11million users) and many many others
    2) The clients can encrypt traffic to avoid detection.
  • Do unto others...

    Maybe AFACT require a demonstration to prove the point.

    Step 1: I post some material for which I hold the copyright on a torrent site, including a message that only those I authorise have permission to download it.

    Step 2: AFACT members, in trolling for copyright breaches will undoubtedly come across it. The warning should ensure that they download it and check it out, thus breaching my copyright.

    Step 3: I notify the AFACT member's ISP that they have breached my copyright.

    Step 4 : I and others repeat the above a few times.

    Step 5: I insist that the AFACT member's internet service be cut off due to habitual copyright breaches under exactly the same rule they want to use.

    Thankfully, I don't have to worry about annoying irrelevencies such as due process, innocent until proven guilty, or a burden of proof. I don't have to fork out any money for lawyers or court costs. They can be cut off purely on my say so.

    Sounds fair to me.
  • Apples and pears, my friend

    "supporting piracy" I suppose you could hold the government responsible for all the deaths, injuries and costs incurred by drivers on our roads (extend your thinking to other areas, the possibilities are limitless, as the costs to us). Yet therein lies exactly the ethical and moral side: Pursue and if need be, penalize the culprit, not those who provide the means. Then again, this way is easier and that's why its being done. Me thinks that rights profiteers should invest in technology that (may or may not) inhibit or prevent piracy, rather than lobbying govt's to do it for them. But, alas, its cheaper to cry foul and let someone else foot the bill to ensure one's not too small profits... From my limited knowledge, rights owners make larger margins than ISP's. And on a final point, what do your ethics and morals say about rights owners who do not adequately invest in protecting their wares against piracy? Is that guilty by neglect as well? The point being: Once you expand the scope beyond the culprit, you are on very, very thin ice....
  • Thanks!

    Nice analysis. The crux of it being:

    "Why is getting a court order to protect someone elses rights iinets responsibility?"

    In fact, iiNet have no standing in such a case. Why not? They do not hold copyright here.
  • Bigger problem here

    This issue will keep coming up, even more so since we signed FTA with the US, which "imported" many US laws into Australia.

    The deal is this: IP laws (copyright and patent) are nothing by legislated private monopolies. Yes, the M word. They lower competition and do not contribute to creation and innovation (Google: "Against Intellectual Monopoly"). As long as we have them, the "rent-seekers" will go after people over copying their precious IP.

    Film makers can make ample profits without copyrights (contracts with theatres are enough). Musicians can make ample profits performing their music (what a novel concept: working for a living). Book authors can make ample profits by contracting their works to publishing houses. And examples go on and on. Even pharmaceuticals can live without patents - they spend far more on marketing anyway.

    As long as we keep electing people that give us these monopolistic laws, we'll be the ones paying the monopolistic prices. There is no point trying to persuade film studios - they are the monopolists - they will always want to keep their monopolies. We need to tell our representatives that we don't want these things. Otherwise, we have nobody to blame but ourselves.
  • Not quite right, John

    The applicants' case depends largely on a number of infringements that were documented in great detail. They will say that iiNet was given far more proof than a simple 'unsubstantiated allegation'.

    The argument will go that 'infringer' for the purposes of the Safe Harbour rules may not mean 'alleged infringer' but it doesn't mean 'court-proven infringer' either. The applicants will say by failing to take appropriate action in that these cases where high levels of evidence have been supplied, iiNet has disqualified itself from Safe Harbour protection.

    If that argument succeeds following a finding of authorisation, iiNet is indeed exposed to a damages award.

    Unless the effect of these cases where highly detailed evidence was supplied is taken into account, the conclusion that "the best AFACT can probably hope for is an order that the infringing accounts be terminated" is not justified.
  • There has to be a better way

    I want to watch Heroes ad free on the screen of my choosing and at the time of my choosing. Channel 7 wants to derive advertising revenue from organisations that want me to watch their ads while they are interrupting Heroes. I want to receive ads for Christmas breaks down south, golf clubs, boats etc. Its crazy that Channel 7 has joined with AFACT. Work out a way to give me what I want and I will happily share what I want you to advertise to me. Stop treating your customers as criminals and find a better way!!
  • Lets play their game...

    These 34 companies are going after iiNet. So why don't we NOT go after these companies this Christmas!!

    What I mean is this Christmas stay clear of purchasing any goods from the following companies...
    Village Roadshow,
    Universal Pictures,
    Warner Bros Entertainment,
    Paramount Pictures,
    Sony Pictures Entertainment,
    Twentieth Century Fox Film Corporation,
    Disney Enterprises, and the
    Seven Network and whatever the other 26 companies are!!!

    Let us the consumer show them our strength and what it is like to be attacked, hit them where it hurts...
  • Easy to fix

    Shallow argument. this assumes that all torrents are illegal, and that All file sharing site have only illegal content. Get real and try to input sensible comments.
  • Not quite right,John

    Not quite right. It is not iiNet's responsibility, however it is argued, to become the defacto ombudsman or censor for other peolpes' download content. Now, if they were paid to do this, that would be a completely different matter. then there might be a case of breach of contract.

    As it stands, this is a furphy. Corporate thuggery. And, look where these Ba*****s have landed the world economy.
  • Freedom Protest

    I am a firm believer of political and economic freedom for all entities both human and corporate - and generally would support most corporate movement as a means for their survival.

    Although I believe that this process of corporate decision is purely based on greed, intimidation and uncompetitive behaviour which suppress technological and community evolution.

    As previously said, we as a community must stand and fight together as the people of Sweden have to support The Pirate Bay.

    We must show to the world that we as a community does not and will not condone and blatantly oppose their decisions.

    We must show our disagreeance NOW before a precedence is set to which a strike is won for Corporate Record Industry Bullies.

    As a Victorian, I hated the government for their pathetic speed camera "safety" fiasco in the past - or more accurately defined as the Governments Piggy Bank!

    We must tell these Record and Movie Companies that they need a new method of product delivery and primarily lower costs!

    I will put my hand up to participate in a rally against corporate bullies!

    Stand for our technological freedom - and most importantly, our right to vote and protest!
  • Not quite right ...

    I am fascinated by the number of people in this 'debate' who simply spout imaginary law. Read Moorhouse's case from 1977 on www.austlii.edu.au, and you'll find that things you imagine not to be the law are in fact so.

    We can't make it otherwise by just asserting 'It is not iiNet's responsibility ...'.

    Legally, the Copyright Act says that the provider of a facility used for copyright breach can indeed be taken to have 'authorised' breaches by inference in certain circumstances. And if so, it is 'guilty' as an infringer itself.

    Sorry to break the bad news, but it has been in the Act for decades.