October 2009
The World Looks to Australia in Landmark Piracy Case
The IP world will be closely following the Federal Court in Sydney over the next month as one of Australia’s largest ISPs, iiNet, goes head to head with 34 film companies, represented by the Australian Federation Against Copyright Theft (AFACT). AFACT is suing iiNet for copyright infringement claiming that it does do enough to stop its customers illegally file sharing. AFACT claims that iiNet fails to enforce the terms and conditions in its standard customer agreements that enables it to cut off the services of users who have infringed copyright. In support of this argument iiNet have produced a sample of a 59-week period when they found that approximately 98,000 iiNet customers had illegally shared material online.
iiNet have responded by saying that it is impossible for it to monitor the activities of millions of customers and the multitude of files which they share each day, some of which may be lawful and others which may contain infringing materials. In addition, iiNet claim that they have never done anything to support or encourage copyright infringement and, in fact, have supported the film industry in its attempts to police infringing material and co-operated with take down notices. iiNet claims that such is the volume of copyright notices it receives that if it were to show the court all the copyright notices it received over a 5 month period then it would take 180 large folders and more than 12 trolleys to bring them to court. Finally iiNet claim that they are prevented from monitoring user downloads under privacy laws.
The presiding judge in this case, Justice Cowdroy, is taking a keen interest in this case. He has already overruled AFACT’s attempts to exclude documents relating to the take down notices so that he can take a closer look at the take down notice procedure and whether it is reasonable. He has also asked to see a live demonstration of BitTorrent. BitTorrent is an open source file-sharing application for distributing very large software and media files. The software itself is legal and is used by many internet users for legitimate reasons ranging from sharing software to exchanging information over the internet. However it can also be used to share infringing music and film files on a massive scale and is currently one of the most popular tools for illegal file sharers.
Whatever the outcome of this case it is likely to have significant consequences for file-sharing and the role of ISPs. If AFACT wins then ISPs all over the world may be required to take a more proactive role in enforcing copyright infringement by cutting off their customers. If iiNet wins then it is likely to reinforce the current position and create further obstacles for rights holders.
Briffa Comment
iiNet’s arguments are very familiar and represents the position held by ISP’s all over the world. AFACT certainly face an uphill battle if they are to win this case and we would suggest that the best they may be able to achieve is to bring into question iiNet’s take down procedures.
AFACT are being backed by some of the heavyweights in the film industry including Fox, Paramount and Warner Brothers, who are applicants in the AFACT claim. They may be seeking to use the case to put pressure on governments to tackle the problem. In the UK there is already ongoing discussions about introducing a “three strikes” policy for illegal downloaders. A watered down version has already been introduced in France after it was challenged on constitutional grounds on the basis that it went against the presumption of innocence.
If this problem is going to be tackled properly it will be for governments rather than courts to come up with solutions by, for example, introducing minimum standards for ISPs where they are required to proactively assist rights holders in policing their rights and to do more to enforce the terms of their customer contracts.
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