iiTrial: Studios call for graduated response against infringers

Appeals Justice Cowdroy's findings on the 'means' of infringement.

The film industry has again put the disabling of BitTorrent in the too-hard basket, preferring instead that ISPs start "graduated responses" against users accused of sharing copyrighted materials.

On the second day of its Federal Court appeal in the copyright case against Perth ISP iiNet, the studios' lead barrister David Catterns QC continued to argue that Justice Cowdroy had erred in a number of his findings in the original case, including his reading of the 'means' to infringe copyright.

Justice Cowdroy stated at 436 in his judgement that the Court did not consider "warning and termination of subscriber accounts on the basis of [Australian Federation Against Copyright Theft] Notices a reasonable step, and further, that it would constitute a relevant power to prevent the infringements occurring.

"The respondent did not create the ‘means’ to infringe copyright. It was the constituent parts of the BitTorrent system which has given rise to the infringements," Justice Cowdroy found.

"Consequently, it cannot be incumbent upon the respondent to stop the infringements. Even if it was incumbent upon the respondent, that does not lead to the conclusion that it was a reasonable step for it to take action."

Catterns QC today "respectfully" suggested that the finding was wrong, because iiNet's service also provided a means to infringe.

Catterns said that a user's ability to infringe could be halted if iiNet took some or all the "graduated steps" the studios suggested it take.

They included warnings, flagging the account, shaping, playpenning, suspension and - ultimately - termination.

"It does make a difference, because these [graduated] acts - up to disconnection - must impact on the ability of the subscriber to infringe," Catterns QC said.

Catterns QC led the full bench of the Federal Court to several examples in evidence that he claimed were proof of the types of graduated responses iiNet had at its disposal when dealing with the problematic actions of a subscriber.

These responses were listed in policies around combating spammers and other network abusers, or for customers whose credit card details had expired.

The studios have previously held up these responses up as "reasonable steps" for iiNet to take when faced with AFACT infringement notices.

Disregarding the thousands of "robot notices" described in the first case, Catterns QC said AFACT's notices were "highly specific allegations of infringement" that were verifiable. He said iiNet's decision not to act on them was, "we respectfully submit, a bad answer".

Justice Cowdroy found in the original case that the "only relevant power to prevent [at iiNet's disposal] was a scheme of notification and termination/suspension of subscriber accounts."

But the Court had found such steps unreasonable. Justice Cowdroy had also said there was "insufficient evidence" that steps like playpenning and website blocking were "technically feasible" to be applied across the entire subscriber base.

Catterns QC repeated arguments made yesterday that iiNet "has got very sophisticated systems" that were capable of handling and applying the graduated steps the film industry proposed.

BitTorrent presser

The film industry also resurrected a press release that was issued by iiNet both via its website and via BitTorrent, which had surfaced during the original case.

Catterns QC argued today that by disseminating the press release via torrent, it was being "sent to the very people that were infringing" copyright on iiNet's network.

"We submit it conveyed a message that they [iiNet] weren't going to do anything," Catterns QC said.

BitTorrent was "notoriously used for infringing purposes," he said.

Michael Malone, chief executive of iiNet said under cross-examination last year that it was "perfectly legal" to offer the media release via torrent.

The case continues. Readers can register for iTnews' complete coverage.