TODAY Perth internet firm iiNet returns to the Federal Court in Sydney to slug it out with Hollywood for the second half of one the most determined legal bids to bring internet piracy under control.

For the first time the studios have teamed up to make a serious legal challenge to the notion that internet providers cannot be held responsible for what their customers do online.

They are suing iiNet for copyright infringement because it chose, like many other internet service providers, not to stop some of its customers using software such as BitTorrent to illegally share files on its network.

The fact that iiNet has been singled out has prompted plenty of dark conspiracy theories on the internet, and observers around the world are keeping a close eye on the case.

In fact, the internet community's collective bile duct has been working overtime to generate hundreds of shrill Tweets and forum posts that barely stop short of calling for war against Hollywood.

"Do we sue carmakers for road accidents?' is typical of the intuitive logic of the backlash.

For bearers of this logic, a negative outcome for iiNet would be such an egregious miscarriage of justice that CBS Interactive technology journalist Liam Tung went so far as to compare the case with Arthur Miller's fictionalised account of the Salem witchcraft trials in The Crucible, inspired by McCarthyism in the 1950s.

But if that's the case why are the likes of Telstra and Optus quietly standing by and letting iiNet go it alone?

There's a strong argument that the Australian internet industry knowingly left the studios with no choice but to bring what they knew would be an unpopular case against an ISP.

The situation originates with the US congress's 1998 Digital Millennium Copyright Act, which contained measures that gave US internet firms immunity, or "safe harbours", from liability for damages in copyright suits arising from use of their networks.

At the time, the Australian internet industry enthusiastically lobbied to have similar measures introduced here.

Similar laws had been trickling into Australian copyright legislation but they were substantially shaped in 2006 to match the US legislation, to comply with the US Free Trade Agreement, which came into force in 2005,

There is, however, one important difference. Like the US laws, Australian copyright law makes ISPs eligible for the safe harbour provisions if they "adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers".

Australian internet lobbyists successfully fought to remove provisions in the US laws that made it easy for copyright holders to subpoena ISPs for information about customers.

Copyright holders hoped matching laws would give Australian ISPs an incentive to disconnect, or at least warn, customers not to breach copyright online and a low-cost means to go after repeat offenders if they did not.

Australia's largest ISPs have largely ignored the safe harbour requirements and bluntly told the body monitoring the area -- the Australian Federation Against Copyright Theft -- to get a court order, which is exactly what iiNet is arguing.

That would mean running thousands of subpoenas through the legal system. Checkmate.

Over 59 weeks AFACT, bringing the case on behalf of 34 entertainment companies, gathered evidence of copyright infringement against customers of several ISPs.

It then recorded the evidence, along with internet addresses of alleged infringers, and sent them to ISPs, including iiNet, as part of notifications requesting they take action to stop it.

A core part of iiNet's case is its rather neat argument that acting on the notices would have put it in breach of telecommunications and privacy laws on use of customer information.

Its evidence includes correspondence between Telstra and AFACT in which the carrier appears to hold an identical legal view on the notices.

This appears to be a novel legal argument, since the Internet Industry Association lobbied to have the US act's provisions introduced, which would have led to a customer termination policy -- that is, using customer information. So why are privacy laws an impediment now?

Also problematic for iiNet's argument is that evidence is emerging from the trial that other ISPs did act on AFACT's notices.

None of those ISPs had been censured, as might be expected according to iiNet and Telstra lawyers.

It may be unfortunate that iiNet drew the short straw, but it's clear the legal planets that bought the trial to being have been lining up for a long time.

It's hard to see how the Internet Industry Association could not have seen it coming, and equally difficult to see how AFACT had any choice left.

The trial is expected to run for another two weeks and a ruling is expected in about six to nine months.


TonyC of Brisbane Posted at 12:47 PM November 06, 2009
Go and have a look at the BitTorrent site, the logos of some large movie studios are quite prominent (or they were a few days ago). Some, I suspect, are members of AFACT. Where does that put 'pirates' who are Iinet customers and use BitTorent which is apparently endorsed by some movie studios?

BieRHeDD of Melbourne Posted at 4:48 PM November 04, 2009
"it chose, like many other internet service providers, not to stop some of its customers using software such as BitTorrent to illegally share files on its network" AFACT did not provide court orders to indicate the customers were sharing ILLEGAL material. They only alleged it. iiNet is not in a position to determine the legality of their customer's traffic. If AFACT wanted iiNet to act they should have provided court orders. It's presumptuous to suggest iiNet did nothing to stop PROVEN ILLEGAL activity when no proof was supplied by AFACT, merely allegations.

Ted of Brisbane Posted at 6:06 PM November 03, 2009
If the wealthy international movie studios sector can team up and bring legal action against a single small aussie company, then iiNet should be able to team up with others in their industry/sector to fight them... Who knew Americans were so gutless.... Let me rephrase that: Who knew they were such bullies... ok ok, everyone knows.. But come on, we were one of the very few who appeared to support your illegal wars etc... Why would you beat up on your friends? No wonder the world has lost respect for your country... Now we have too....

iiNet slays Hollywood in landmark piracy case
ASHER MOSES February 04, 2010
The giants of the film industry have lost their case against ISP iiNet in a landmark judgement handed down in the Federal Court today.
The decision had the potential to profoundly impact internet users and the internet industry as it sets a legal precedent surrounding how much ISPs are required to do to prevent customers from downloading movies and other content illegally.
But after an on-and-off eight week trial that examined whether iiNet authorised customers to download pirated movies, Justice Dennis Cowdroy found that the ISP was not liable for the downloading habits of its customers.
In a summary of his 200-page judgment read out in court this morning, Justice Cowdroy said the evidence established that iiNet had done no more than to provide an internet service to its users. He found that while iiNet had knowledge of infringements occurring and did not act to stop them, such findings did not necessitate a finding of authorisation.
He said an ISP such as iiNet provides a legitimate communication facility which is neither intended nor designed to infringe copyright. He said it was only by means of the application of the BitTorrent system that copyright infringements were enabled, but iiNet had no control over this system.
"iiNet is not responsible if an iiNet user uses that system to bring about copyright infringement ... the law recognises no positive obligation on any person to protect the copyright of another," Justice Cowdroy said.

Public response to iiNet judgement:

11 February 2010 02:25 PM

It's now a week since Justice Cowdroy ruled that iiNet did not authorise its users to infringe copyright on its network, and the news has had time to sink in. ZDNet.com.au asked the public what it thought of the verdict.

The film industry had alleged that internet service provider (ISP) iiNet "authorised" copyright infringement occurring on its network. But the ISP argued that although copyright infringement may have been occurring on its network, it was not responsible for stopping it.


Justice Dennis Cowdroy ruled for iiNet, saying it did not authorise its users to infringe.

After the decision, the film industry called on the Federal Government to do something about online piracy, but would not comment on whether it would appeal.

The Sydney Morning Herald previously reported a spokesperson for the minister saying that the government was considering a "three strikes" rule — if a user infringes copyright three times they would be cut off by an internet service provider — depending on the outcome of the trial.

However, the day after the decision, Communications Minister Stephen Conroy told ABC TV's Hungry Beast program that the film and ISP industry should create a code of conduct together to prevent piracy, instead of looking to legislation.

This was a landmark decision for the industry. In case you missed the furore, ZDNet.com.au has also put together a video summary of what it was all about.

ZDNet.com.au also has longer videos of iiNet managing director Michael Malone, Internet Industry Association CEO Peter Coroneos and Australian Federation Against Copyright Theft executive director Neil Gane on the day of the trial.

UK cinemas plan 'Alice' boycott
Friday, February 12 2010, 14:23 GMT
By Simon Reynolds, Movies Editor

UK cinema chains Odeon, Vue and Cineworld are planning to boycott Tim Burton's Alice In Wonderland due to its truncated theatrical run.

The March 5 UK release of the 3D film is in jeopardy because the leading exhibitors require a guaranteed four-month theatrical run to book a film. Disney announced earlier this week that the gap between the cinema and home release will be cut from the standard 17 weeks to 12.

Disney US distribution chiefs Bob Chapek and Chuck Viane are flying into the UK to discuss plans for Alice's release. According to The Guardian, the 12-week deal is said to be a "take it or leave it" offer.

"We feel that it's important for us to maintain a healthy business on the exhibition side and a healthy business on the home video side... We remain committed to theatrical windows, with the need for exceptions to accommodate a shortened time-frame on a case-by-case basis, such as with Disney's Alice in Wonderland," explained Chapek.

Alice In Wonderland, which stars Johnny Depp, Mia Wasikowska, Anne Hathaway and Helena Bonham Carter, was filmed predominantly in the UK by Burton.

The royal world premiere will go ahead as planned in London on February 25.