Australian ISP Defending BitTorrent-Using Subscribers in Court

Refuses to admit customers engage in copyright infringement, and questioned whether it’s one-to-one nature and transfer of pieces of a work rather than it’s whole qualifies as making them “available to the public” in violation of copyright law.

iiNet, Australia’s 3rd largest ISP, has been quietly defending BitTorrent-using broadband subscribers there in Federal Court.

The Australian Federation Against Copyright Theft (AFACT), on behalf of Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, is suing iiNet for allegedly allowing customers to download movies illegally in violation of copyright laws.

“iiNet refused to address this illegal behavior and did nothing to prevent the continuation of the infringements by the same customers,” said AFACT’s Executive Director, Adrianne Pecotic, when it filed the suit last November. “iiNet has an obligation under the law to take steps to prevent further known copyright infringement via its network. “Our members have asked the court to order the ISP to act to prevent the continuing unauthorized use of copies of our titles by its customers, consistent with iiNet’s own terms and conditions which prohibit illegal activity on its network,”

iiNet has refused to admit that any of its customers engage in illegal file-sharing by using BitTorrent to share copyrighted material.

In a recent court hearing iiNet also questioned whether the one-to-one nature of data transfer really meant “making them available” under Australian copyright law.

It also noted that if BitTorrent breaks a movie, for example, down into a hundred different files and a customers only shares a portion of them then it may not be enough to argue that a user illegally distributed a “substantial portion” of the copyrighted material in question.

AFACT said it’s irrelevant, that all it needs to prove is that iiNet’s customers engaged in copyright infringement and the ISP did nothing to stop them after being informed of the transgression.

By failing to disconnect repeat infringers, it argues, iiNet in effect “authorized” the behavior.

In remarks following the court date given to the Communications and Media Law Association (CAMLA), the Minister for Broadband, Communications and the Digital Economy, Senator Stephen Conroy, said the trial “embodies the challenge of how to lay down the rules for tomorrow.”

Senator Conroy, if you recall, is the one responsible for the country’s ill-conceived efforts towards mandatory Internet filtering for all, and iiNet is the same ISP that told him it would no longer participate in a trial of his proposal.

He noted that the entertainment industry is reluctant to pursue new business models because it’s confidence in making more content available online is being sabotaged “by reports that indicate a large amount of internet traffic is P2P file-sharing” and the “…the activity persists in ways that potentially undermine the commercial sustainability of the industry.”

Senator Conroy’s solution?

Force ISPs to become content cops or convince the entertainment industry to change their business models and create new online content delivery systems that are capable of luring people away from illicit file-sharing.

Too bad we already know which it’ll choose before it even debates the merits of the latter proposal.

The Federal Court date for the iiNet trial has been set for October 5th.

Stay tuned.

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