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Hollywood claims Aussie ISP promoted BitTorrent use

Trying again to make iiNET police its customers

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In February, the Australia Federal Court ruled that iiNet, the country's third biggest ISP, was not liable for copyright infringements committed by customers.

The plaintiff, the Australian Federation against Copyright Theft (AFACT), which represents the film industry, vowed to appeal and the two sides were arguing the toss in court today.

The case hinges over the illegal downloading of films by iiNet customers using BitTorrent. In the February ruling Judge Cowdroy said AFACT had exaggerated the extent of copyright abuse and awarded expenses to iiNET.

His decision hinged on whether iiNet authorised copyright infringement.

The Court answers such question in the negative for three reasons: first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.

Get more of the stuff you love

In its opening submissions to the Federal Court today, reported here and here, AFACT returns fire with an interesting argument.

It has seized on the correspondence between iiNet and "RC-08", a subscriber who seeded 40 copyrighted works on BitTorrent, in an attempt to establish collusion between the two, and hence culpability on iiNet's part.

iiNet told RC-08 that he had breached his download limit and would have his traffic shaped accordingly. After RC-08 broke his monthly limits repeatedly, the ISP advised him to upgrade to "get more of the stuff you love".

AFACT's barrister, David Catterns, noted iiNET's policy in place for keeping spammers in check and said the company should have deployed a similar policy for copyright infringers. This would see iiNET monitor and cut off customers who share pirated movies – and those who do engage in illegal downloads could see their connection terminated by their ISPs.

Hold the line

It is interesting that AFACT has directed its legal guns at Australia's third biggest ISP and not at Telstra, a corporate giant.

This seems to be a case of pour encourager les autres: get the smallest first, establish a precedent and the others will fall into line.

In Europe, IRMA, Ireland's answer to the R.I. Ass. of America, launched an ambitious legal action last year to try to force all of the country's ISPs to impose a "three strikes" policy on their customers. ®

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