In a hearing today, iiNet laid out the issues on which it will fight the Australian Federation Against Copyright Theft, and those it will concede.
AFACT filed the case last year after iiNet allegedly failed to act on notices of infringement — noting IP addresses of infringers and the pirated movies they were accessing — which AFACT sent over an 18-week period.
When Justice Cowdroy started the directions hearing, he remarked that the multitude of writing on the case could be summarised into key issues, and asked the AFACT counsel Christian Dimitriadis to lay out them before him.
Dimitriadis said iiNet was not disputing that copyright for the titles which had been allegedly pirated existed, so that would not be an issue.
The three issues he then identified to be in question were whether iiNet authorises the acts of infringement, whether it was not liable if its customers infringed on copyright, and whether the Safe Harbour provisions of the Copyright Act would protect it against needing to carry out actions such as cutting off infringing customers.
"There are other peripheral issues perhaps, but those are the key issues," Dimitriadis said. These issues were also addressed in the Kazaa and Cooper cases, where the defendant lost.
iiNet had, however, not yet decided whether it would accept that the users had been infringing copyright at all. This would depend on its examination of the information provided by AFACT on the Federation's technical investigations into users' infringements. AFACT had recently provided that to the ISP.
The judge made dates for the final filing of evidence and set a tentative booking for the final hearing, which the parties estimated would last for two weeks, at 5 October.
Yeah, iiNet are playing it cool. What they are saying is that it is not up to them to decide whether or not something their customers do is legal. Heck, what's next - banks held responsible for dispensing the cash used to buy drugs?
The most that can be reasonably expected is for an ISP to report on activity that falls within certain parameters as set in legislation and to take action on any legal orders. As far as I know, none of those mechanisms are in place except for right holders to get a court order for each specific violation. Its obviously cheaper to try and badger the ISPs.
This is an outright abuse of the legal system by AFACT to avoid the expense of having to go about things the right way i.e. lobby the government for legislative change and wear the cost of following up infringements. It would be great if iiNet had a case to counter sue AFACT for bringing such a baseless case against them.
I dont think you can use Kazaa as a precedent here. They were not an ISP in the first place. I think the problem with Kazaa was that they did facilitate forums etc in which it was quite clear that the main use of the tool was for downloading copyrighted material.
Of course, legislation is often poorly written and so iiNet may not win regarless of whether the decision is fair or not.