iiNet’s legal battle

A landmark court battle has begun between Australian internet service provider iiNet and some of the world’s largest entertainment companies.

Lawyers for the Australian Federation Against Copyright Theft filed their opening submissions in the case against internet service provider iiNet in the Federal Court yesterday.

The submission says “iiNet has persistently failed to take a single practical step either to prevent the continuation of the infringing acts to enforce its contract with its customers, which prohibits such activity.”

“Instead, it shields those using its services from any consequences of the infringing activity, rewards them by continuing to provide the internet services by which the infringing acts are occurring, and does so explicitly for its own commercial benefit.”

AFTACT brought the case on behalf of a consortium of Australian and overseas copyright holders, including Disney, Paramount Films, Universal and the Seven network.

The submission says it has sent notices of infringement to iiNet, Australia’s third largest ISP provider, each week for more than a year.

“It is a remarkable feature of this case that the notices continue to be sent on a weekly basis, but that iiNet continues not to act upon them,” the filing says.

The submission’s central argument is that the court should require iiNet to police its user’s downloads in order to aid copyright holder’s fight to protect their work.

“The ISP providers are absolutely adamant that they should not have to police their users, that that’s the responsibility of the copyright holder – and the copyright holders are equally adamant that the ISPs should be helping them,” Minter Ellison partner Charles Alexander says.

“The consequences of this case are enormous… the decision will tell all other internet service providers what they have to do as well.”

But although AFTACT says its members are losing revenue through iiNet’s stance, Alexander says the case is “not primarily about money”.

“I very much doubt money is the central motivation here. They see it as more a matter of principle, I believe… and on principle, the parties are fundamentally opposed.”

The case is due to be heard in the Federal Court on October 6 and is expected to last for three weeks.
But Alexander says the legal battle is only beginning. “It’s very likely to go all the way to the High Court. It will certainly not be settled at the end of this case, there’s no question there will be an appeal.”

“I don’t know who’s funding the case exactly, but the other internet service providers are very much aware of this case, let me put it that way. They are watching it very closely. Both parties have highly skilled counsel.”

“We hope the case will be successful, we’re very confident of success,” a spokesperson for AFTACT said.

After a brief hearing last week, the Internet Industry Association said it would not apply to intervene in the case as an amicus curiae, or friend of the court, as it had previously indicated. Lawyers for AFTACT argued that iiNet’s membership in the IIA meant the IIA’s involvement would inappropriately affect the hearing.
iiNet did not respond to requests for comment.