Lawyers for the Australian Federation against Copyright Theft have nearly 100,000 examples of iiNet users downloading copyrighted materials including films and television programs, they revealed in the Federal Court yesterday.
They also accused iiNet of a double standard over the company’s claim that it could not be charged with monitoring the download activity of its customers, with lawyers for AFACT arguing iiNet regularly reviews users’ downloads in order to pitch new products and plans.
The allegations come on the first day of the landmark case between the two parties, which industry experts have said could have ramifications for the entire telecommunications and entertainment industries.
In his opening remarks, Tony Bannon SC said iiNet was willing to contact users about new download quotas in order to promote new products, but did not use those same details to enforce the terms and conditions of its user agreement.
“These unauthorised copies available view the iiNet network represented free handouts of my clients’ copyright,” he said. “Films and video require a large amount of bandwidth to share via BitTorrent, which is the program of choice for internet users intent on infringing copyright. iiNet profits from selling bandwidth to its customers.”
Bannon also pointed out that ISP Westnet had a policy by which it would contact users it suspected were engaging in copyright infringement. But after iiNet acquired the company, the policy was dropped.
“Upon hearing upon acquisition that was Westnet’s policy, what did [iiNet chief Michael] Malone do? He prescribed the policy be abandoned in favour of iiNet’s policy. That was the iiNet policy of doing nothing,” he said.
AFACT’s legal team, which represents over 30 major media and entertainment companies including Warner Brothers and Sony Pictures Entertainment, said iiNet has been negligent in failing to stop users downloading these materials.
They said several major films, including Batman Begins, Happy Feet, Spiderman 3 and episodes of animated sitcom The Simpsons, were among the downloaded materials. About 97,000 examples of copies were made.
“By making those films available in those 29,914 instances, iiNet customers invited any and every user of the freely available BitTorrent software program to download any and every part of those infringing copies,” the opening remarks stated.
“That represents 29,914 instances of free handouts of my clients’ copyright… One would have to multiply by many times that figure of 29,914… to get any idea of the volume and frequency of films available from iiNet customers to others.”
Bannon said iiNet is “paying lip service” to the idea of taking steps to prevent infringements, and that it had “given customers carte blanche to do whatever they want”.
Additionally, Justice Cowdroy, who is presiding over the case, has requested a live demonstration of how BitTorrent technology is used to download films.
After Bannon showed a video of an investigator using a program to download a film, Cowdroy asked: “Can you show me, Mr Bannon, how many other internet providers are providing the same sorts of information? What other ones right now are doing this?”
“It’d be interested to see this in real life,” he said. Bannon replied that the demonstration was not online, but that a live demonstration would be a possibility.
“But for the purposes of the opening – there may be some controversy about. But it is interesting to see that… as iiNet sits in this court room represented by its legal representatives its clients are online accessing these films,” he said.
BitTorrent technology allows users to download pieces of a file from several different users, in order to download the file at a faster rate.
The case continues.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
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