[LINK] Film industry takes on iiNet

Bernard Robertson-Dunn brd at iimetro.com.au
Fri Nov 21 09:30:19 AEDT 2008

Film industry takes on iiNet
Michael Sainsbury and Fran Foo
November 21, 2008
The Australian IT

Australia's biggest film and television companies have ignited a 
long-simmering war with the internet sector, lodging a lawsuit against 
Perth-based broadband provider iiNet seeking damages that could run into 
millions of dollars. The group, which includes Warner Brother, Sony 
Pictures, Disney and the Seven Network, has also left open its options 
of taking further legal action against the counttry's big two broadband 
players, Telstra and Optus.

The broad aim of the action is to stop internet users from using 
high-speed connections to swap digital versions of Hollywood films like 
American Gangster and Mama Mia! as well as and popular television shows 
such as Heroes and Two and a Half Men. These actions breach copyright 

Twentieth Century Fox, a sister company of The Australian publisher News 
Limited, is also party to the action.

Working under the Australian Federation Against Copyright Theft banner, 
the group carried out a five month operation checking well know internet 
"file swapping" sites.

"iiNet refused to address this illegal behaviour and did nothing to 
prevent the continuation of the infringements by the same customers," 
AFACT executive director Adrianne Pecotic said.

"iiNet has an obligation under the law to take steps to prevent further 
known copyright infringement via its network," Ms Pecotic said.

She said court proceedings are expected to last for 12 months at a 
"substantial cost" and refused to rule out future action against other 
ISPs, including Telstra and Optus.

"We're not ruling anything out," she said.

The lawsuit, which will provide a major test case if it proceeds, was 
lodged in the Federal Court yesterday seeking cease and desist actions 
again iiNet customers and an unspecified amount of damages.

iiNet managing director Michael Malone said when it received AFACT's 
complaints, they were forwarded to the Police. "But AFACT refused to 
talk to the Police," Mr Malone said.

Ms Pecotic brushed aside Mr Malone's explanation, saying: "The law is 
clear and iiNet knows that. They cannot pass the buck ... it is their 
responsibility. There were many things that iiNet could have done and at 
the very least, issue a warning to the customers involved but they did 
nothing," she said.

Unlike a number of other major jurisdictions such as the United States 
and Britain, Australia does not have blanket agreement between content 
companies and broadband providers about file swapping.

An Optus spokesperson said that under Australian law there are remedies 
available to copyright holders, including taking action directly against 
those alleged to be infringing rights.

"It is unfortunate that the rights holders are targeting an ISP because 
under Australian law, internet service providers may generally be 
considered conduits which provide carriage services, and as such are not 
responsible for copyright infringements carried out by customers using 
their internet services,'' the spokesperson said.

This position is reflected in sections 39 (B) and 112 (E) of the 
Copyright Act 1968 (Com), and in the safe harbours set out in Division 
2AA, which were introduced protect ISPs from being onerously required to 
enforce intellectual property rights where they are merely providing 
carriage services.


Bernard Robertson-Dunn
Canberra Australia
brd at iimetro.com.au

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