[LINK] Opening salvos in landmark piracy case

[Bernard Robertson-Dunn]

Opening salvos in landmark piracy case
Asher Moses
February 7, 2009
Fairfax Media
http://www.watoday.com.au/technology/opening-salvos-in-landmark-piracy-case-20090207-809b.html?page=-1

In a landmark case that could stop pirates in their tracks, leading ISP 
iiNet has formally defended itself against claims by movie studios that 
it willingly permitted customers to download movies illegally.

In the Federal Court today, Australia's third largest ISP - which could 
face millions in damages - argued the case was "like suing the 
electricity company for things people do with their electricity".

iiNet filed its defence yesterday, claiming that the Copyright Act and 
Safe Harbour provisions introduced with the US free trade agreement 
stipulated that ISPs were not liable for copyright infringement by 
customers.

Today, Justice Dennis Cowdroy said the formal hearing would tentatively 
begin on October 5 and both sides would have two weeks to present 
evidence and make their case.

Late last year, seven major movie studios and the Seven Network filed 
suit against iiNet for allegedly allowing its users to download pirated 
movies and TV shows using BitTorrent.

The landmark case will determine the lengths to which an internet 
provider must go to prevent illegal downloading on its network.

A loss for the movie industry could leave it no choice but to go after 
individual downloaders, as has occurred in the US. However, if iiNet 
loses, all ISPs could be forced to disconnect customers identified by 
the movie studios as illegal downloaders.

In its defence, iiNet admitted that the movie studios held copyright to 
their libraries of films but was not yet ready to concede that its 
customers illegally downloaded them.

Regardless, it said that it would not derive commercial benefit from 
customers downloading films illegally and would in fact incur more costs 
due to the additional bandwidth used.

In court today, lawyers for the movie studios said they provided iiNet 
with evidence of its customers' copyright infringement yesterday. The 
studios hired online investigators DtecNet to intercept BitTorrent 
traffic and record all instances of iiNet users downloading copyrighted 
movies illegally.

In the face of this evidence, lawyers for the movie studios said they 
expected iiNet to admit that its customers had downloaded movies 
illegally. iiNet's lawyers said they were still reading the document but 
may be willing to concede that point.

Both sides agreed that the main issue in the hearing would be whether 
iiNet was liable for the actions of its users and whether it in effect 
"authorised" their copyright infringement by failing to disconnect them 
when notified of the infringements by the movie studios.

The Australian Federation Against Copyright Theft (AFACT) sent several 
letters to iiNet notifying the ISP of the infringements, however, in its 
defence iiNet said the notifications were "mere allegations of copyright 
infringement" and were forwarded to police.

"The allegations of copyright infringement in the AFACT notifications 
were not accompanied by sufficient information to demonstrate the 
veracity of the allegations," iiNet claims.

"iiNet was, and is, legally bound to continue to provide relevant iiNet 
Services to iiNet Subscribers under its contracts with those subscribers."

iiNet pointed out that it provided access to legal downloads of games, 
movies, music, radio, sports and TV content through its Freezone 
service. (www.iinet.net.au/freezone)

It said it "did not sanction, approve, or countenance" alleged copyright 
infringement by any iiNet user.

The iiNet case is similar to the one the music industry brought against 
the Kazaa file sharing service in 2002, which ended in 2006 with Kazaa's 
owners handing over $100 million in damages.

Additionally, in 2005, Stephen Cooper, the owner of MP3s4free.net, and 
the website's host, E-Talk Communications, were successfully sued by the 
music industry for infringing copyright by publishing hyperlinks to 
sites that contained illegal music.

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Regards
brd

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