Australian ISP in court for not disconnecting users

Australia's third-largest ISP finally found itself in court this week after film companies last year sued iiNet for not disconnecting Internet users on their say-so. The case will be a major test of Australia's "safe harbor" copyright law that provides immunity to Internet service providers—but only those that "reasonably implement" a user termination policy for "repeat infringers."

The movie studios told Australia's Federal Court yesterday that a one-year investigation had uncovered 97,942 examples of iiNet customers making copyrighted films available on peer-to-peer networks. 29,914 of those cases involved films at issue in the current litigation. The movie Wanted was the most popular offering, while the truly execrable Hancock was second.

The film industry wants iiNet to start disconnecting those users who are sharing such material after receiving notifications from industry investigators (apparently DtecNet in this case).

"iiNet customers invited any and every user of the freely available BitTorrent software program to download any and every part of those infringing copies," said the film industry's lead lawyer in his opening remarks, according to Australia's ITnews. "That represents 29,914 instances of free handouts of my clients' copyright. One would have to multiply by many times that figure of 29,914... to get any idea of the volume and frequency of films available from iiNet customers to others."

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The claim here is that iiNet has a legal duty to take "reasonable" measures to disconnect users who violate copyright law repeatedly. iiNet's position to date has been simple: an "allegation of infringement" is quite different from "proof of infringement." In its view, rightsholders should take users to court, obtain a judgment against them, and then present this judgment to iiNet, who can disconnect the user's account.

Australian law is quite clear that it does not force an ISP to "monitor its service or to seek facts to indicate infringing activity," but ISPs can't be profiting directly from the infringement and they must "reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers."

The film studios argue that iiNet is failing on both counts. By not acting in any way on a long list of complaints over the last several months, the company is demonstrating its lack of a meaningful termination policy even as it continues to rake in subscription revenue from the users who it refuses to shut down.

After the first day in court, iiNet told reporters that "blaming the Internet service provider for copyright infringement was akin to suing Australia Post if drugs were sent in the mail."

A decision in the case is not expected for some time, though when it does come down, it will set an important precedent for how far Australian ISPs must go in cooperating with copyright holders.

It could also provide more guidance on whether making files available is itself copyright infringement, or whether rightsholders need to show evidence of actual reproduction or distribution.

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