ISP iiNet undertook today to stop sitting on the fence on whether it will admit that its users have been infringing copyright, in a Federal Court hearing today for the court case brought against it by the Australian Federation against Copyright Theft.
ISP iiNet undertook today to stop sitting on the fence on
whether it will admit that its users have been infringing
copyright, in a Federal Court hearing today for the court case
brought against it by the Australian Federation against Copyright
At the last court hearing in February, iiNet said that it was not contesting
that copyright existed for titles but did not make a decision on
whether it was going to concede that its customers have been infringing
copyright. It has already said that it is denying it authorised
users to infringe copyright.
AFACT had brought a motion against iiNet, which was to be heard
today, along with other concerns both from it and the other side, to
bring the ISP to make a decision.
AFACT said that since iiNet had requested and received
particulars detailing the information collection process which
AFACT had used to discover which IP addresses had been allegedly
downloading and making pirated titles available online and the ISP
also had access to an affidavit that described how two
investigators acting for AFACT had themselves acted as infringers
on the iiNet network, it should have had the information it needed
to make the decision.
"How you cannot admit that films are being made available
online is, quite frankly, beyond us," AFACT counsel Tony Bannon said. He believed
it was a stalling tactic: "As soon as they admit there are
infringements going on in their system and they do nothing, the
authorisation case is almost a shut door."
Yet iiNet's counsel Richard Cobden said that he had only received an amended
particulars document which he described as "thin but sufficient"
on 18 March. The document had also been labelled confidential, he
said, which had precluded him from showing it to professional
advisors, which has since been rectified.
Now that iiNet had the necessary information, it was prepared to
make its decision on whether it was denying or admitting
infringement on 1 April, Cobden said.
"What we appear to be accused of is the crime of being too
helpful," he told Justice Cowdroy. "We are not obliged to admit
[our users infringing copyright]. [AFACT] must demonstrate primary
infringements. If we choose to not admit it then they have to prove
iiNet also said that it could fight the fact that users had
infringed by questioning that they were transmitting copies of
films to the "public", since they were one-to-one transmission or
because the films were broken into small packets which would mean
that no one user was transmitting a "substantial" part of a film.
Bannon was concerned that iiNet's answer would still be
unsatisfactory since it might focus on such legal issues and asked
Justice Cowdroy to amend the requested order to state that iiNet
must say whether it admitted factually that its users were
infringing as well as addressing legal issues. Cowdroy agreed, and
said he would make an order that iiNet provide information by 1
April as it had said.
During the hearing the iiNet counsel also questioned whether
parts of the AFACT case should be put to bed before the trial
started, such as one which alleged that the iiNet users would make
copies on DVDs.
iiNet said that there was no proof of any one instance where
this had occurred, but AFACT's counsel countered by saying copying
films to DVDs was "a notorious practice" which could be expected
if people were infringing copyright by downloading films. "It's
not a far-fetched inference by any means," Bannon said.
Justice Cowdroy reserved his judgement on those issues and will
not make orders until a later date.