High Court day 1: iiNet's control over choice

How much control does an internet service provider (ISP) have over a customer's choice to infringe on copyright and what reasonable steps can it take to stop that infringement? These are the issues that the High Court addressed on the first day of the case between iiNet and the Australian Federation Against Copyright Theft (AFACT).

At the opening day of the High Court case determining whether iiNet authorised its customers' copyright infringement by inaction, AFACT counsel Tony Bannon took Chief Justice Robert French and Justices William Gummow, Kenneth Hayne, Susan Crennan and Susan Kiefel through an explanation of how a user obtains a film or TV show through a BitTorrent client, and how AFACT came to determine that iiNet customers were infringing on copyrighted material.

Using the examples of Top Gear and The Dark Knight, Bannon showed how the investigative firm Dtecnet determined that an IP address that was "seeding" the torrent file — that is making available an entire copy of the TV show or film — was from iiNet, and how this evidence was given to iiNet by AFACT, which wanted the ISP to take what it considered to be reasonable steps to prevent further copyright infringement.

Bannon told the court that iiNet had a variety of measures that were within its power to implement after receiving these notices, including passing on the warnings, suspending a users' account or handing over the customer details to AFACT.

"If [an ISP] were to say to them, 'This is an allegation' and if [a customer] came back and said, 'No, they're lying', and they say, 'Well, we'll let you two sort it out; we're going to hand your details over to the copyright owner unless you do something about it and we'll find out very quickly as to whether they really are lying'. In other words, that would be a very effective step, one might think," he said.

Crennan believed an ISP's control over its users actions over the internet could extend to ISPs notifying a user, with a following step of having the information passed on about the infringer to the copyright holder in the event of repeated infringements. But she raised concern that in any one household, if a customer's internet connection was suspended, one person's copyright infringement could impact on the rest of the house.

"It would be legitimate for them to be worried about substantiality issues, threats issues, in relation to termination — the whole issue about there being an account in relation to a household and perhaps only a member of the household engaging in the conduct complained of. There could be all sorts of issues which would bear on whether it is reasonable or not to terminate an account."

French questioned whether it would be a reasonable step for iiNet to simply pass on the notices without endorsing or confirming their validity.

"If iiNet sent to one of the addressees mentioned in the AFACT notice, having identified the customer, a notice saying 'We neither sanction, countenance nor approve your downloading films in which copyright subsists without paying for them' and that reflected its genuine position, is the fact that it does not follow up with enforcement relevant then to authorisation?"

Bannon said that would be insufficient because the ISP had not taken steps to prevent future infringements.

"[T]here is no doubt we said for all times, from the beginning of this case, that they should take a step at least of warning notices. Did we say that is enough? We never said that would necessarily be enough, that it depends, because we have not got to that situation yet, but we could not dictate."

Hayne said the case ultimately confronted the larger issue for copyright holders: how much control an ISP has over the individual choice of its customers in what they choose to use the service for, including downloading films and TV shows using BitTorrent.

"[I]t confronts the basic conundrums for the copyright holder. It is the existence of the network of networks, namely the net, which enables unauthorised sharing of copyright work. The prevention of it ultimately depends upon the individual choice of the user of the net. You seek to achieve the result through the medium of the company that provides access of the user to the network, and the conundrum is the power that the ISP has, the steps that the ISP can take depend ultimately for their effect on the individual user's choice, for all that the ISP can do is switch off."

Of the six organisations that had sought to intervene on the case, French ruled that only the Communications Alliance and the Australian Performing Rights Association should be heard on the basis that their submissions may assist the court. Submissions from the Australian Recording Industry Association; the Media, Entertainment and Arts Alliance; the Privacy Foundation and the Digital Alliance were all dismissed.

The full transcript of yesterday's hearing can be read here.

The case continues today. Stay tuned to ZDNet Australia for all the coverage.