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

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

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

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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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