Internet service provider iiNet has old the Federal Court that taking disciplinary action against users for engaging in alleged copyright violations would be a crime under the Telecommunications Act.
The statement is part of iiNet’s response to a copyright action taken against iiNet by the Australian Federation Against Copyright Theft, representing major entertainment companies, which claims that iiNet should “take reasonable and appropriate steps” to purge copyright fraud from their networks.
AFACT, which represents companies including Warner Bros. Entertainment, Paramount, Disney and 20th Century Fox, has said it wants iiNet to disconnect users who engage in copyright fraud.
But iiNet barrister Richard Cobden said in court that disconnecting users for “unproven allegations of copyright breaches” would violate the Telecommunications Act.
“Under the Act, it is illegal for iiNet to use customers’ personal information in the manner demanded by AFACT without a court order or warrant. Breaches of the privacy provisions of the Act can attract a two-year gaol sentence,” the company said in a later statement.
“AFACT has continued to refuse to advise iiNet what specific action they wanted taken against unproven allegations of copyright breaches. Surprisingly, today in the Federal Court, AFACT argued that it could not, and would not spell out the steps iiNet should have taken.”
Cobden also told the court that iiNet intends to argue the company cannot take the measures recommended by AFACT against its customers unless other ISPs are also required to use them.
AFACT, whose legal case focuses on about 86 pieces of entertainment that have been allegedly downloaded by iiNet users, released a statement of its own attacking iiNet.
“We find it surprising that iiNet would argue they are precluded from gathering customer information by the Telecommunications Act for the purposes of preventing piracy and yet claim protection under the safe-harbours which would require them to do the very acts they are claiming is illegal,” AFACT director Adrianne Pecotic said in a statement.
Additionally, it said that iiNet is will within its rights to disconnect users for engaging in illegal activities online, and the Telecommunications Act gives them power to do so.
“The prohibitions do not apply to acts to which the customer has consented – by signing the terms and conditions that say that the customer must not engage in illegal activity, the customer has given consent.”
If AFACT is successful it could change the face of the telecommunications industry, forcing other ISPs to disconnect users who download illegal files.
A full trial is now scheduled for October.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
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