AFACT v iiNet: Epic BitTorrent Copyright Case Concludes

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The copyright case between AFACT, representing the movie industry, and Aussie ISP iiNet is set to conclude today. The Internet Industry Association was disallowed from becoming a friend of the court, and the chief movie industry barrister said that ISPs who refuse to forward infringement notices should get out of the business.

AFACTThe copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (multiple links to all our earlier coverage can be found here, here, here, here and here) is set to conclude today.

Lead barrister for AFACT, Tony Bannon, continued with his aggressive approach to this case by issuing warnings to Australia’s Internet service providers on the issue of copyright infringement.

He said that iiNet and other ISPs who don’t want to handle copyright infringement notices (such as those issued by his clients) are happy to take money from their subscribers, but are shirking their responsibilities. The solution to this, he said, was for them to shut down.

“They [ISPs] provide a facility that is able to be used for copyright infringement purposes. If they don’t like having to deal with copyright notices then they should get out of the business,” he said, as quoted by ITNews.

This reluctance to deal with infringement notices at the behest of the studios has been one of the main points of contention in the case. The studios feel that iiNet should hand infringement notices to their customers and even disconnect them, while iiNet feels that it has no obligation to do so under the law, particularly when acting on the unverified evidence of a 3rd party.

Bannon went on to say that iiNet had made zero effort to deal with even a small percentage of the alleged infringements on their network, commenting: “…they say they can’t send a single notice to anybody, it’s like saying they can’t stop physical violence happening to the person next to them because there’s physical violence happening all around the world.”

Bannon said he believed that terminating a customer or two on allegations of infringement would have sent out a clear message to other potential infringers. But of course, iiNet knows that if they complied with that request the studios would be back saying “you did it there, why can’t you do it here…here….here….here…..”

Bannon went on to say that while iiNet denied it had any control over BitTorrent clients and the potential for users to operate them for infringing purposes, it did have the power to render the software useless.

“But if the user isn’t online there’s nothing the BitTorrent client can do to infringe,” Bannon told the court.

For its part, iiNet sits firmly behind Section 112E of the copyright act:

A person (including a carrier or carriage service provider) who provides facilities for making, or facilitating the making of, a communication is not taken to have authorised any infringement of copyright in an audio visual item merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.

Earlier the Internet Industry Association (IIA) had applied to contribute to the case as amicus curiae, or ‘friend of the court’. Justice Cowdroy decided today that the industry group would have little to add to the case, since the issues it planned to raise had already been covered in detail by iiNet, mostly concerning the ISP’s commitments under the Copyright Act and Telecommunications Act 1997.

Earlier this week at their annual general meeting, iiNet boss Michael Malone gave company shareholders some painful news. The costs of defending the AFACT case had amounted to $4m AUD (approx $3.7m US).

The court proceedings are scheduled to conclude today, but the verdict will not be issued for several months.


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