iiNet v AFACT: Film studios had contractual agreements with BitTorrent partners

iiNet accuses plaintiffs and BitTorrent partners of similar inaction against copyright infringements

iiNet has used contractual relationships between movie studios and BitTorrent websites to counter accusations by the Australian Federation Against Copyright (AFACT) that the ISP is guilty of "authorising" copyright infringements by customers through inaction.

Thirty-four movie studio applicants and Seven Network, represented by AFACT, have spent the first two days of trial presenting detailed information to the court on how the BitTorrent software client used on the iiNet network facilitates copyright breeches. Through inactivity to stop copyright violation of subscriber, by terminating or suspending services, iiNet is then considered to have "authorised" the illegal behaviour of its users.

Internal emails between iiNet and Westnet staff were tendered to the court to demonstrate the ISP turned a blind eye to copyright infractions.

On day three of the trial, iiNet barrister, Richard Cobden, revealed from discovery documents that a number of applicants and key members of Motion Picture Association of America were in contractual agreements with BitTorrent Inc, which maintains the software client. The studios' logos, including applicants Warner Bros. and Paramount Pictures, appear on the BitTorrent inc's website. This is also the case for the torrent hosting website, Mininova.

"They have engaged, at least from the logo on BitTorrent Inc, in the promotion of BitTorrent, the vehicle for all infringement in this case," he said.

Cobden pointed to the fact that, despite the deals struck between studios and BitTorrent business owners, the involved websites did nothing to discourage users from abusing BitTorrent to download copyright materials. He argues, on that basis, the studios are happy with this arrangement.

This argument has be used to fight AFACT's accusation that iiNet's inaction in deterring subscribers from copyright infringements equates to condoning the illegal activity, since the studios and partners themselves also took no action.

Cobden said that it was unfair to force iiNet to do the studios' policing work as they were effectively evading their own responsibility.

"[iiNet] doesn't want to be judge, jury and executioner," he said.

Cobden fended off claims by AFACT that the ISP was "rewarding" and "encouraging" copyright law breakers by offering to upgrade heavy users' download quota.

He said iiNet promoted users to move to a higher download cap simply so that they would not incur astronomical bills from excess data charges or to avoid the inconvenience of a slowed connection speed.

As for iiNet ignoring AFACT infringement notices, which were continuously sent to ISP, Cobden asked the court to acknowledge that iiNet's fellow ISP peers were also on the same boat.

Further evidence presented to the court suggests other ISPs that have been contacted by AFACT with the same infringement notices, including Optus and Telstra, have also not acted on them.

The court case continues. For a detailed timeline on this case, click here.

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Tags Australian Federation Against Copyright (AFACT). TelstraiiNetoptus

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11 Comments

Anon

1

Inaction leads to pain, always...

People in our street turned a blind eye to Mr Jones in Number 4, who beat his wife all the time.

None of them were legally liable for the beatings, but they were all just as morally and ethically guilty.

I thought ISPs had Fair Usage policies? Are they there to be disregarded, until it costs the ISPs money?

BTW, Mr. Jones always claimed that he could do what he likes in the ***privacy*** of his own house, and that it was no one's business trying to pry...

Well thanks to the Mr. Jones's of this world and all the neighbours who said it was none their business, the police now have the power to invade all our homes at any time and check out what we are doing, **on suspicion** of illegal activities...

The ISP industry has now created exactly the same circumstances for our internet traffic.

Thanks guys for your years of inaction...

Bob

2

The copyright holders are aware of what they need to do.

All the copyright holders need to do is do what anyone else would do, and go through proper, legal channels instead of trying to strong-arm the ISPs into offering them an illegal shortcut.

For the ISP to snoop on what each of its users was doing on the chance that they might be doing something illegal would be immoral and also illegal.

Imagine the outrage if any other communications carrier was forced to do the same thing without a warrant.

Bob

3

Adding onto my last, nobody who is not found guilty of something should be punished.

Until an individual has been found guilty of an offence, no punishment, no matter how light, is acceptable.

Again, this should be taken through the correct channels instead of making monitoring our internet usage mandatory.

Oh, and in the Mr. Jones comparison, the neighbours, if they were aware of it, would be advised to report it to the police. The ISP CANNOT be aware of illegal activity without performing any of the aforementioned illegal activities.

As a copyright notification is NOT any form of warrant or legal authorisation to monitor a user's connection or anything along those lines, the ISP still CANNOT legally be aware of illegal activity until such groups as AFACT report this through the proper, legal channels.

I fail to see what's so unreasonable about this.

Bob

4

Better comparison

A better comparison would be if some random stranger told Mr. Jones's neighbours that he was beating his wife, and they then took out illegal vigilante justice. That's what the ISPs are being asked to do.

Anonymous

5

Re: Inaction....

To the poster above who commented about Mr Jones in number 4, your example is flawed.

"None of them were legally liable for the beatings, but they were all just as morally and ethically guilty."

It's not up to them to stop the beatings or take it up with Mr Jones - it's up to them to take it to the police.

Just as it's not up to AFACT to take it to iiNet - it's up to AFACT to take it to the police.

Asmo

6

Except

IP piracy isn't wife beating. AFACT, Mrs. Jones good friend, is too busy yelling at the neighbours because they didn't help instead of going to the police. Mr Jones wife, that is big entertainment, could have gone to the police themselves rather than sitting around like a stupid bint waiting for everyone to hold their hand.

But thanks for trying to hysterically link the two and make us think that big entertainment is a 'beaten wife'.

I've got a fun story for you. You can't stop piracy no matter how hard you try. Find a new way to work with P2P, innovate for a change.

Anonymous

7

inaction...

And I'd like to point out that maybe the wife is submissive and the husband is a "dominatrix" and the wife likes to be beaten from time to time as it turns her on.

Or maybe it's not even the guy's wife, maybe it's a prostitute who gets paid to be beaten or whipped in some weird sex games.

The point is, just because it looks like wife is being beaten (and technically she is) it doesn't mean neighbors or husband were liable or morally / ethically guilty.

The analogy is: maybe it looks to you or to some companies that a movie is pirated but often it's not so clear.

Maybe the studios only have rights for the retail discs and for the cinema distribution only and the author of the movie freely distributes the movie on his site as digital download or allows the movie to be distributed through p2p (see for example documentaries like Blue Water where author originally complained about p2p but then accepted and allowed it or some of Michael Moore's movies).

An ISP can't detect from file names the legal situation of a file and can't know if that file is copyrighted or not.

They usually receive this copyright information from music and video companies which often mistake.

A good example happened these days, with Edwyn Collins' song "A girl like you". He has all the rights for the song after all deals with music companies expired (and the companies lost the right to sell the track) yet Myspace rejected his track for months because Warner Music claimed copyright on his track and they still sell compilations with his track even though it's illegal).
If it was up to AFACT, the ISPs should cut your connection because you download Edwin Collins' "A girl like you" and after you spend money in trials and months and days lost at your job, they'd just say "Oups, my bad. We don't actually own the copyright on it."

Anonymous

8

re:"He said iiNet promoted users to move to a higher download cap simply so that they would not incur astronomical bills from excess data charges "

O for crying out loud, has this guy even looked at iinet's offerings, most are shaped. There is not going to be a "astronomical excess data charges", and definitly none in the range that telstra gives out on a semi-regular bases.

michael

9

I haven't looked, But IINet will most likely offer options for the shaping to be disabled and pay per GB instead.

Anonymous

10

Telecommunications ACT

has anyone looked into the telecommunications act lately? The ISP can't look into the web logs without a warrant. So if they have checked who's actually been downloading, they've broken the law.

Anonymous

11

Cancelling contractual agreements

I don't think AFACT has given a satisfactory reply or any reply to the sudden cancelling of the Film Studios' BitTorrent arrangements last year.

Maybe AFACT thought the arrangements would weaken their case and paint them in a hypocritical light while they were trying to manufacture a case against iiNet. I suspect this to be the situation as their barrister's blood pressure shot up when the arrangements were presented.

I note part of AFACT's manufacturing has been withdrawn as it would show them to be more technically ignorant. For instance, caching hole DVDs.

The Film Industry's current approach shows it to be the arrogant ignorant ass it is.

BWT, AFACT you'll most likely hear from the Judge about your exaggeration.

Comments are now closed

 

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