AFACT ISP copyright case begins

34 content producers sue iiNet in landmark download case

SYDNEY -- An Australian Internet service provider has been accused of allowing over 94,000 illegal downloads of Hollywood films in a landmark copyright case brought in the Federal Court of Australia.

The 34 members of anti-piracy organization the Australian Federation Against Copyright Theft, filed the suit, which goes to trial Tuesday with hearings expected to take up to four weeks.

The companies, including Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corp., Disney Enterprises, Inc. and the Seven Network, are seeking a ruling that iiNet, Australia’s third largest ISP, infringed their copyright by “failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorized use of copies of the companies’ films and TV programs by iiNet’s customers via its network."

If AFACT is successful in its claims, ISPs could become liable for copyright infringements, and could be forced to take the unprecedented action of suspending accounts of users identified as infringing copyright.  

AFACT will argue that iiNet authorized infringements of copyright -- more specifically films and TV programs downloaded using BitTorrent. 

AFACT said it had sent iiNet notifications containing IP addresses which were allegedly breaching copyright laws over 59 weeks, claiming iiNet had a duty to contact customers connected to those IP addresses to suspend or disconnect their services if the activity did not cease.

“iiNet authorized -- that is sanctioned, countenanced and approved these illegal activities on their network and only paid lip service to their own terms and conditions,” AFACT’s Barrister Toney Bannon told the court Tuesday. 

“iiNet point blank refuses to enforce its own customer services agreement yet in the same breath points to the agreement as evidence of reasonable steps they took in preventing copyright infringement. They are caught between a rock and a hard place and when push comes to shove, they will not enforce the terms of their customer agreement,” he said.

In a summary of its defense, iiNet said that it “was under no such duty” to suspend user accounts.

iiNet’s defense will argue the principle of “authorization,” saying “despite the applicant’s rhetoric, this case goes well beyond any other, anywhere in the world, in extending liabilities to a utilities provider/carriage service provider for authorization of copyright infringement.”

iiNet will also raise Part 13 of the Telecommunications Act, focusing on a telco’s privacy obligations, which states that it could not disclose “the contents or substance of a communication” it has carried across its network -- meaning iiNet could not legally check what its users were transmitting.

It could also fall back on the "safe-harbor" provisions of the Digital Millennium Copyright Act under the U.S. and Australian Free Trade Agreement, which states that carriage providers are not required to monitor services for infringing activities.

iiNet said Tuesday: “We’re very confident of our position and the defense, we will vigorously defend the case. iiNet has not and does not breach the copyright act or the telecommunications act, and does not support, encourage or authorize illegal downloading or breaching of the copyright act.”

“On the contrary, iiNet in actual fact has a proud record of being a good corporate citizen and an even better copyright citizen. It’s been a market leader and innovator in promoting and encouraging users to access licensed copyright material through its own website.”

Both parties have been preparing their arguments for 11 months. In that time AFACT has pulled back on two key parts of its claims, last week withdrawing its “primary” copyright infringement claim, which alleged that iiNet itself had made copies of the films.

A statement from iiNet then said AFACT’s case was unraveling and showed “a complete lack of knowledge of internet technology and operations."