Day 19: iiNet tries to show disbalance in studio demands

Sample accounts don’t download many films and TV shows.

ISP iiNet will argue the “reasonable steps” that the film industry proposes the ISP take are disproportionate to the number of infringements recorded against a sample of 20 user accounts.

The ISP’s lead barrister Richard Cobden commenced closing statements in the Federal Court today - the first time in over a fortnight he had spoken, apart from a brief re-examination of iiNet chief Michael Malone last week.

Cobden said the outcome of iiNet’s closing submissions would be that the “very large number of infringements that the applicants are fond of identifying” would be reduced - “but not to some trivial number that the applicants should not be concerned about.

“But for a number of reasons [the number] is not going to be anything like the applicants say,” Cobden claimed.

He claimed that a sample of 20 iiNet user accounts provided to the film industry revealed the accounts “might” average two or three film or TV episode downloads over the film studio’s 59-week investigation.

“It’s clear from the accounts that ultimately the [infringing] activity is likely to account for a very modest percentage of that user’s activity [and] a very modest percentage of their quota,” Cobden alleged.

“And really if one bores through the welter of detail in the AFACT spreadsheets, what it looks like over the 59-week investigation period that there might be an average per user of two or three films or TV shows.

“None of that amounts to the dramatic sorts of infringement that the applicants speak of”, Cobden alleged, nor did it confirm the film industry’s allegations that infringing activities were driving users onto higher quota plans, from which iiNet profited.

“We wouldn’t suggest that two or three films over 59 weeks per account is something the applicants or the court should not be concerned about,” Cobden claimed.

But he alleged that on balance, the steps that the film industry has suggested iiNet perform - which include warning, ‘playpenning’ of an account or termination - were disproportionate  to the amount of allegedly infringing acts or the proportion of activity they represented on the sample user accounts.

“On balance it’s not something that requires iiNet to do anything to the nature of what the industry wants iiNet to do,” Cobden alleged.

It was understood Cobden would run through the majority of this part of its defence next week.

The case continues. You can follow the case in-full here. For a background on the case, click here.