iiNet vs AFACT: Internet Industry Association denied entry
- 26 November, 2009 14:48
- Comments 3
The Internet Industry Association (IIA) has been refused participation in the legal dogfight between the Australian Federation Against Copyright Theft (AFACT) and iiNet by the Federal Court.
The industry body represents the wider Internet community, including ISPs, and has more than 140 members.
On the final day of the copyright trial, presiding judge, Justice Cowdroy, passed judgment rejecting IIA’s application to contribute to the case as amicus curiae, a ‘friend of the court’. The application, first flagged in September, was opposed by AFACT as it claimed IIA was incapable of taking a neutral position in the case as iiNet is a member of the organisation.
AFACT also accused the the IIA of liasing with the defendant to provide advice on the case. AFACT had previously tendered email documents showing the two parties had communicated over copyright infringement.
Justice Cowdroy concluded the industry body would have little to add to the trial. In a judgment document, he said that most concerns regarding the Copyright Act and Telecommunications Act 1997 has been covered extensively by iiNet.
“Indeed the industry detail and comprehensiveness of iiNet’s closing submissions, stretching more than 260 eclipses the brief submission of the IIA and even on the specific matters with which the IIA wishes to address the Court,” the document said. “The Court acknowledges that the fact that the IIA could not be considered impartial is irrelevant.
“Equally, it is irrelevant that the IIA happens to have a perspective which is aligned with one of the parties and not the other.”
AFACT barrister, Tony Bannon SC, also delivered his rebuttal to iiNet’s closing. He restated his previous credibility attacks on iiNet and readdressed the claim the ISP is culpable for the piracy by its users.
“The user with an unauthorised copy of a film, if he is not online then he is not infringing and iiNet… has power to prevent access to its facilities and hence iiNet has the ability to address infringement,” Bannon said. “[To assert iiNet] has no power to prevent [infringements on its network] is ambitious and it is wrong.”
He rejected iiNet’s claim it had no control over the BitTorrent software, the primary tool used for the said copyright infringements, and was therefore unable to act.
“This ignores the central element to infringement, which is making [content] available online, in this case, by iiNet’s facilities,” Bannon said. “If [a user] is not online… there is nothing the BitTorrent software can do to cause [him or her] to be infringing online.”
AFACT is representing a host of Hollywood film studios suing iiNet for ‘authorising’ copyright contravention by its users by turning a blind eye to their illegal downloads on BitTorrent.
The proceedings are scheduled to conclude today. A verdict is not expected for several months. For a detailed timeline of the case, click here.
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Comments
AnonymousLlama
AFACT = Tosser
Who does Bannon think he's kidding.
“This ignores the central element to infringement, which is making [content] available online, in this case, by iiNet’s facilities.”
If an iiNet user is connected and doesn't run a bittorrent client then he's not making content available online - the facilities provided by iiNet are unchanged. Only the user can enable and/or download material online. There is nothing proactive that iiNet has done that makes content available online.
AFACT look at this from the obverse - they think every ISP should be monitoring or preventing bittorrent traffic because it might carry copyright material?? Tossers - grow up.
Remember when Sony defended our right to copy stuff with VCR's? The original VCR case was decided in favour of Sony because of the valid use of a VCR to record non-copyright material. Bittorrent is the same. The ISP's place in this is that of the maker of the cable connecting the VCR's together. It's still the users at each end that decide the material and press the play and record buttons.
You don't see Sony making much of a stink now though. Now they are happy to infect your PC's with rootkit copyright systems. Products that, when revealed, proved to be illegal and a virus gateway. And to show their real stupidity, it could be circumvented with a single button press.
Surely AFACT are not so stupid to think that p-p will die or even be scratched if they win?? There are thousands of ISP's in the world with millions of customers and they are in places where AFACT will get a poor hearing - or no hearing.
"Sony - first do no good"
Llama
Duncan
I really do wish this case would blow away. The amount of time and energy spent by iiNet management on this case must really be distracting them from running their business.
David
when will it end?
The way things are going, AFACT and the RIAA and MPAA and other similar organisations will push to place filters and checks on all traffic online and offline. They will want to know what is inside of every file that we carry on a USB flash drive, every file we send in an email and even over private networks at home.
What comes after that? Checking the contents of every car that drives down the highway or every bag the someone carries through a shopping center? Or maybe even every thing that gets sent in the mail just in case it might contain a CD burnt with a copy of a movie or music on it? What ever happened to privacy?
Instead of picking on ISPs who are there to provide a service to transmit data from one part of the world to the other (which would be the same way that a government provides roads to drive on and the postal service to send mail) they should be focusing on the real pirates.
Those who make money by taking video cameras into cinemas or those who copy DVDs and CDs and sell them at markets or in the streets or those who hack into computers or steal physical media before the content is released to the public and then distribute it either at a cost or for free in various mediums. This happens for movies, music, books and software.
The copyright laws are clearly out of date and seriously need to be updated before it goes even further than it has already gone...
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