iiNet: Heritage separates ISP from convicted copyright infringers

iiNet’s company history separates the ISP from previously convicted copyright infringers, its barrister told the Federal Court during closing statements.

On day 19 of the trial, iiNet barrister, Richard Cobden SC, acknowledged the Australian Federation Against Copyright Theft (AFACT) drew parallels between the current case and previous copyright litigations involving illegal downloads authorisation.

AFACT used the high profile Sharman and Cooper trials to bolster its attacks on iiNet. In both cases, the companies were found guilty of copyright contravention.

But in his closing statement, Cobden said such comparisons were unfounded. Unlike Sharman and Cooper, iiNet’s origins were firmly rooted in providing Internet services for the public and the company was not established to facilitate illegal content download.

“There is no other case here or anywhere else where a provider of general facility has been sued for infringement authorisation [for not withdrawing services],” he said. “iiNet grew with the Internet… it started in [the early 1990s, in iiNet CEO] Michael Malone’s garage. In due course, it was incorporated.

“Its aim was to build up its subscriber base… that was all happening well and truly before the Internet was in any sense [capable of] downloading films, music and even photographs.”

Cobden noted it wasn’t until peer-to-peer (P2P) systems were invented, such as Napster and subsequently Kazaa, that large-scale sharing of sound files and movies became possible. He stressed Malone and iiNet did not set out to make cinema-grade downloading the core function of the business.

“It is about keeping up with competitors… and keeping up with the general expansion of computers and technology,” Cobden said.

According to the barrister, this separates iiNet from the likes of Sharman, Kazaa’s developers, and Cooper, where the parties were guilty of setting out to exploit piracy opportunities.

iiNet also hit back at AFACT’s criticism of the ISP’s marketing methods. During the trial, AFACT slammed iiNet for issuing a welcome letter to new subscribers including the phrase “Happy downloading”, and claimed it encouraged infringement activity by offering to upgrade download quotas for heavy users.

Cobden argued “Happy downloading” was an innocuous line since almost everything done on the Internet was considered downloading, including webpage browsing that invariably used up a customer’s monthly quota.

He further emphasised iiNet was never obliged to act upon requests from the applicants.

AFACT is representing a host of Hollywood film studios and is suing iiNet for ‘authorising’ copyright contravention by its users by turning a blind eye to their illegal downloads on BitTorrent.

The case is due to continue on to next week. For a detailed timeline of the trial, click here.

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