iiNet stands firm on legislative defence

iiNet did not comply with requests to cancel the accounts of alleged copyright infringers, but it did not need to, iiNet's legal counsel argued today as the ISP started to close off its legal battle in the Federal Court.
Written by Liam Tung, Contributing Writer

iiNet did not comply with requests to cancel the accounts of alleged copyright infringers, but it did not need to, iiNet's legal counsel argued today as the ISP started to close off its legal battle in the Federal Court.

iiNet legal counsel Richard Cobden kicked off his closing submission to Justice Cowdroy by stating that iiNet sat squarely within the same law that prevented the likes of Telstra and Optus from complying with the Australian Federation Against Copyright Theft's (AFACT) request to forward its notifications to alleged repeat copyright infringers.

"[Section] 112E is clearly applicable to Telstra, Optus, and many other ISPs giving access to the internet, and we are squarely in the sights of Section 112E," he said.

Section 112E of the Copyright Act, which deals with customer privacy, is a key plank in iiNet's defence against AFACT's claim that by not complying with its requests, it authorised its customers' breach of copyright.

"Our primary position is that iiNet was never obliged to do anything, in particular anything the applicants asked them to do in relation to ... the notifications," said Cobden. "The law of authorisation does not require [a carrier] threaten customers with notifications or suspension or termination; however, if that's what applicants require ... we are not capable of doing by means of the Telecommunications Act."

Confronting the allegation that iiNet's business model is underpinned by illegal file-sharing, Cobden told Justice Cowdroy that iiNet had maintained the same practices since the "days of dial-up" internet — well before it was possible to share movie-sized files. He said AFACT had a distorted view of the world. "In many ways the applicants look at everything that iiNet does entirely through the prism of their own concern for copyright infringement," he said.

"Michael Malone and iiNet did not come across film downloading and say, 'let's incorporate this into our business'. That came up as it did for everyone else in the industry. All iiNet did was continue to grow the business by keeping up with and staying ahead of its competitors like Telstra and Optus," he said.

"Once you take that prism away and look at it in terms of business and keeping up-to-date with technologies, and keeping its customers happy, almost every document, internal document, takes on an entirely different reflection."

The battle over exactly which legal precedents are the rightful parents of the term "authorisation" under the Copyright Act also continued today. AFACT had last week, in its closing submission, argued that the 1975 case between the University of NSW and Moorhouse was central to the term's use. Authorisation there relied on the university providing photocopiers and books, iiNet's barrister, Cobden, said today, likening BitTorrent to photocopiers and books to copyrighted films.

"The ingredients for authorisation were the photocopier, plus the copyright library books taken from library shelves," he said. "We do not supply BitTorrent."

Cobden argued a more relevant case was a 1911 precedent involving infringements at a public space — Adelaide Corporation versus the Australasian Performing Rights Association (APRA) — which he said showed there was no "duty to interfere" with the communications of its subscribers. AFACT has broadly argued that because iiNet did not forward its notifications and refused to cut off repeat infringers, iiNet had authorised its customers' deeds.

iiNet's protection under Safe Harbour provisions, which limit a carrier's liability under the Copyright Act if it has a policy in place to deal with repeat copyright infringers, had not been threatened by the evidence presented, according to Cobden, because no person had been identified. He said the only person who had been identified as an infringer was AFACT's own investigator, Aaron Herps, and iiNet had not cut his service off because he was licensed by the Hollywood studios to do so.

Cobden said he intended to on 19 November work towards undermining AFACT's claim that iiNet customers had committed primary copyright infringement by way of reproducing DVDs of the 86 titles and other films the case centres on. "There is no evidence that there is consequential burning of DVDs," said Cobden, but said iiNet had accepted that primary infringement occurred where customers made content available online.

He said the number of actual instances of file-sharing over the 59-week period that AFACT's copyright monitoring contractor, Danish software vendor, DTecNet, had counted was nowhere near the 97,000 claimed by AFACT. "We submit ... that it's not a trivial number but ... it's not going to be anything like the applicants say," said Cobden. A more realistic number might be closer to two to three films in total, per iiNet account, said Cobden.

iiNet's closing submissions are expected to continue next week, with further dates confirmed for 24 November, when the Internet Industry Associations chief, Peter Coroneos, may weigh in on the debate.

Justice Cowdroy is expected to deliver his judgement in six to nine months time.

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