Several experts claim the legal dogfight between copyright holders and iiNet will do nothing to appease the problem of illegal file sharing which plagues the entertainment industry.
Thirty-four plaintiffs, comprised of film studio juggernauts and television networks, collectively represented by the Australian Federation Against Copyright Theft (AFACT), are suing iiNet for negligence over its users “rampant” copyright infringements on BitTorrent and peer-to-peer (P2P) protocols.
Market Clarity associate consultant, Richard Chirgwin, said the problem had more to do with an individual’s tendency to share content and less to do with the power of ISPs to act. While providers may be able to take action against specific users with particular technologies, he claimed it would not affect public sentiment.
“People are sharing files and whether the fi lm industry wins or loses the case will be unlikely to change this behaviour,” Chirgwin said. “Even if BitTorrent [the software client] is blocked, I’m sure users will come up with other technologies and there will be an ongoing escalation on the technical side of people trying to work around this. “The industry will forever be playing catch-up to plug the next hole in the dyke.”
If AFACT is victorious in court, Chirgwin claimed the outcome would not only fail to erradicate online copyright infringements, but also create more problems for ISPs.
“Certainly, communications is accepted as less of a luxury and more as a right and asking ISPs to kick people off networks on a particular say-so can be challenged in other ways,” he said. “If iiNet was to lose this case, then the next piece of law to be decided on is whether it is equitable to kick people off networks without going through the courts.”
RMIT University general counsel, John Lambrick, was also singing the same tune. In a statement, he said even if iiNet was successful in court, contravention of copyright on P2P networks would perpetuate. If AFACT wins and is awarded damages, ISPs that fear the same plight as iiNet may be pressured into terminating user accounts, sometimes without justifi cation and without an independent appeal mechanism.
“Neither outcome will protect the rights of both copyright holders and ISPs,” Lambrick stated. While he acknowledged ISPs in some countries, such as Britain and France, have co-operative arrangements with rights holders, they have not been effective since both parties have competing business interests. Instead, Lambrick called on the Federal Government to make a move.
“Regardless of the outcome of the case, the Federal Government should take action to legislate an effective solution that will facilitate downloader accountability and protect ISPs and other providers of communications infrastructure from liability.”
Chirgwin saw legal provisioning of content as a more viable method to address online piracy issues rather than taking aggressive legal action. He highlighted the success of Apple’s iTunes Store, which allows users to purchase music and movies online, as an example of people doing the right thing when there was a proper outlet to do so.
iiNet has been open to negotiations with copyright holders in lawful distribution of content through its Freezone portal, where users can download from without affecting their monthly data cap. Chirgwin said this approach could alleviate piracy and reduce the strain BitTorrent downloads create on an ISP’s network.
The Federal Court case between AFACT and iiNet kicked off on October 6 and is expected to continue for several months.