Crux of iiNet defence due by April

ISP iiNet undertook today to stop sitting on the fence on whether it will admit that its users have been infringing copyright, in a Federal Court hearing today for the court case brought against it by the Australian Federation against Copyright Theft.

iiNet CEO Michael Malone (Credit: iiNet)

iiNet was dragged into the Federal Court in November as major film studios filed a case against the ISP for allegedly letting its users download pirated movies and television series.

At the last court hearing in February, iiNet said that it was not contesting that copyright existed for titles but did not make a decision on whether it was going to concede that its customers have been infringing copyright. It has already said that it is denying it authorised users to infringe copyright.

AFACT had brought a motion against iiNet, which was to be heard today, along with other concerns both from it and the other side, to bring the ISP to make a decision.

AFACT said that since iiNet had requested and received particulars detailing the information collection process which AFACT had used to discover which IP addresses had been allegedly downloading and making pirated titles available online and the ISP also had access to an affidavit that described how two investigators acting for AFACT had themselves acted as infringers on the iiNet network, it should have had the information it needed to make the decision.

"How you cannot admit that films are being made available online is, quite frankly, beyond us," AFACT counsel Tony Bannon said. He believed it was a stalling tactic: "As soon as they admit there are infringements going on in their system and they do nothing, the authorisation case is almost a shut door."

Yet iiNet's counsel Richard Cobden said that he had only received an amended particulars document which he described as "thin but sufficient" on 18 March. The document had also been labelled confidential, he said, which had precluded him from showing it to professional advisors, which has since been rectified.

Now that iiNet had the necessary information, it was prepared to make its decision on whether it was denying or admitting infringement on 1 April, Cobden said.

"What we appear to be accused of is the crime of being too helpful," he told Justice Cowdroy. "We are not obliged to admit [our users infringing copyright]. [AFACT] must demonstrate primary infringements. If we choose to not admit it then they have to prove them."

iiNet also said that it could fight the fact that users had infringed by questioning that they were transmitting copies of films to the "public", since they were one-to-one transmission or because the films were broken into small packets which would mean that no one user was transmitting a "substantial" part of a film.

Bannon was concerned that iiNet's answer would still be unsatisfactory since it might focus on such legal issues and asked Justice Cowdroy to amend the requested order to state that iiNet must say whether it admitted factually that its users were infringing as well as addressing legal issues. Cowdroy agreed, and said he would make an order that iiNet provide information by 1 April as it had said.

During the hearing the iiNet counsel also questioned whether parts of the AFACT case should be put to bed before the trial started, such as one which alleged that the iiNet users would make copies on DVDs.

iiNet said that there was no proof of any one instance where this had occurred, but AFACT's counsel countered by saying copying films to DVDs was "a notorious practice" which could be expected if people were infringing copyright by downloading films. "It's not a far-fetched inference by any means," Bannon said.

Justice Cowdroy reserved his judgement on those issues and will not make orders until a later date.