AFACT claims 100K copyright breaches on iiNet

Day One: Discovered documents introduced.

Investigators claim to have recorded almost 100,000 instances of iiNet users making available online unauthorised copies of films and TV programs from the film studio's catalogues, lawyers for the film industry said in court today.

At the much-anticipated opening of the iiNet versus the film industry case in the Federal Court, the film industry's lawyers said its investigators demonstrated 97,942 instances of unauthorised copies being made available by the ISP's customers to other internet users over a 59-week period.

Of those, just under one-third - 29,914 - related to a sample of 86 works named in the court proceedings.

The works included Batman Begins, Batman - Dark Knight, Happy Feet, Spiderman 3, The Simpsons and Family Guy.

Wanted, starring Angelina Jolie, was "the most infringed title in the case" while Hancock was the "second most infringed title on evidence", film industry lawyers said. Infringements recorded by investigators numbered over 1,000 for each of the two titles.

"By making those films available in those 29,914 instances, iiNet customers invited any and every user of the freely available BitTorrent software program to download any and every part of those infringing copies," the industry's lawyers said in opening remarks.

"That represents 29,914 instances of free handouts of my clients' copyright.

"One would have to multiply by many times that figure of 29,914... to get any idea of the volume and frequency of films available from iiNet customers to others."

Lawyers for the film industry claimed iiNet had done "nothing" to discourage copyright infringement on its network.

They claimed that, "when caught between a rock and a hard place, when push comes to shove they [iiNet] will not enforce" terms and conditions in their standard customer agreement that enables the ISP to cut off the services of users who have infringed copyright.

iiNet has maintained throughout the lead-up to the case that the film industry's allegations of infringement needed to be proven in court for it to take action.

"If it is not going to enforce its own terms and conditions, it's lip service to any assertion it [iiNet] has taken reasonable steps," the lawyers said.

"iiNet does not want to enforce it because it fears losing those customers. [But it] will submit it bent over backwards to assist, that it has done more than any ISP would be expected to do."

The film industry claimed it had discovered documents that revealed "behind the scenes that [iiNet] has been moving in quite a contrary direction" to its public statements of cooperation.

The lawyers claimed one document showed iiNet reversed ISP Westnet's policy of passing infringement notices from AFACT to its customers.

"On receipt of notices informing customers of the problem, Westnet had a policy of taking up with the customer the fact the system [had] been used to infringe copyright.

"Upon hearing upon acquisition that was Westnet's policy, what did [iiNet chief Michael] Malone do? He prescribed the policy be abandoned in favour of iiNet's policy. That was the iiNet policy of doing nothing," the lawyers alleged.

The documents were expected to be detailed later in the case.

The film industry's lawyers also provided a detailed technical explanation of the BitTorrent system and a demonstration of its technical expert Nigel Carson accessing a torrented file.

The case continues.

For background on the case, see the iTnews timeline.