Day 22: Film studios target iiNet business model change

By Ry Crozier on Nov 26, 2009 12:54 PM
Filed under Telco/ISP

Previous cases support alteration.

Internet service provider iiNet could be forced to change its business model if the Federal Court rules in favour of the film industry in the copyright case against it, the court heard today.

In handing up the applicant’s final written submissions, the film studios’ lead barrister Tony Bannon told the court that “in almost all cases [brought to the courts the defendant] undoubtedly has a feeling of commercial offence or outrage that it can’t do what it wants with its property in the way it wants to do it".

“But there is a framework of copyright,” Bannon said. “It doesn’t matter what the nature of the business is - if it runs foul of copyright legislation it’s something they have to address.

“If the court imposes a different business model - if that’s the correct analysis - then it’s not the first time a company has to convert its ways to comply with the law.”

Bannon invoked case law including the Universal Music Australia v Cooper and Universal Music Australia v Sharman cases to show there was a history of rulings that forced businesses to change their operations.

“There’s no reference [in either case] to a business model as some sort of exclusion,” Bannon said.

“The often-repeated catchcry of iiNet to the effect of 'the applicants want us to change our business model' doesn’t have a basis in legislation and is ultimately no more than a catchcry.”

Bannon also directed his closing submissions towards disputing statements iiNet made in its submissions on the grounds there was “no statutory basis” for the claims to be made.

They included that iiNet did not have control over the BitTorrent client - meaning, it had no power to prevent the infringing activities for which the client was used.

“But if the user isn’t online there’s nothing the BitTorrent client can do to infringe,” Bannon put to the court.

iiNet’s power to prevent infringement on its network was in its provision of an internet connection to a customer, Bannon said.

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

Day 22: Film studios target iiNet business model change

16 comments in this discussion

"They included that iiNet did not have control over the BitTorrent client - meaning, it had no power to prevent the infringing activities for which the client was used. “But if the user isn’t ..."

By CodeSeeker

Tags

iinet, afact, bannon, closing, business model change, hollywood, isp, intellectual property, copyright, bittorrent, bit torrent, p2p, peer to peer, pirate, piracy, sharman, kazaa

US six-strikes anti-filesharing system kicks in

France considers smartphone tax for anti-piracy revamp

'Data massacre' as Megaupload files deleted

BitTorrent invites broadcasters to trial Live streaming service

Breaking Stories

Telstra trials five-day interviews for new IT workers

HP, ACCC reach agreement on warranty case

NBN Co launches 25/5 Mbps fixed wireless services

DFAT satisfied with Passports system

iiNet fined $102,000 over Naked DSL bus ad

Comments: 16

Simon900 Nov 26, 2009 4:28 PM	Yes Digger11, we all know you think iiNet is evil and need to be thoroughly crushed like the dogs they obviously are.............wait....you haven't commented yet. My Bad!
Simon900 Nov 26, 2009 4:30 PM	(duplicate posts removed) Edited by rycrozier: 26/11/2009 09:39:46 PM
Digger11 Nov 26, 2009 5:18 PM	Simon, Yeah yeah yeah, I heard you the first time. So you think iiNet is great and should be congratulated ??? Did you actually read the testimonies of Malone and Dalby ??? In particular - read the bit about Malone saying how bad iiNet's technical abilities are. WTF ???? Deceptive buggers.
Res Nov 26, 2009 5:35 PM	Digger11 This is not just about IInet, this is about every ISP, and an organisation that feels it is above the law, why has AFACT not gone after the actual alleged infringers? Why should ISP's just take AFACTS word for it that I.P xyz was infringing? I've seen CIN's for legal material (open source), I only wish I kept a copy of that, but of course then I'd be breaking the law since I would then have my X-employers property in my possession.
Mordd Nov 26, 2009 8:01 PM	They included that iiNet did not have control over the BitTorrent client - meaning, it had no power to prevent the infringing activities for which the client was used. “But if the user isn’t online there’s nothing the BitTorrent client can do to infringe,” Bannon put to the court. Hmmm, if the car owner can't drive their car on the road, they don't have the ability to run someone over or become involved in an accident with another road user. For that matter if we didn't have money then some people couldn't become richer than others and unfairly have more influence and power in the world as a result. Sure look some of iiNet's positions have been quite funny from a legal perspective, but some of the quotes from AFACT's lawyers are just as if not more "out there" than anything iiNet has tried to spin in this case. There is as much PR bullshit on both sides as there is legitimate evidence, and this is a great example of it from AFACT. If we ran the world AFACT would have us, we wouldn't even leave our homes as it might allow the possibility for someone to commit an evil act! shock horror Meanwhile back in the real world....
Mordd Nov 26, 2009 8:05 PM	http://www.itnews.com.au/News/161436,telstra-unleashes-new-broadband-prices.aspx Telstra also said it was introducing new “high usage plans of 100 GB and 200 GB to satisfy the growing demand for movie downloads and more family members connecting at the same time.” ZOMG!!!! Quick, alert Digger11, alert AFACT, call in the military, quickly now, SUE TELSTRA AFACT!!!!!! ZOMG!!!!
Simon900 Nov 27, 2009 10:22 AM	@Digger11 - "So you think iiNet is great and should be congratulated ???" No I didn't, but thank you for trying to put words into my mouth. But you have had such useless one sided commentary that I knew you would post here at some point, making the same point, and completely missing the point on what this case is actually about. But everyone has mentioned this to you before, so I know this will fall on deaf ears once again.
Digger11 Nov 27, 2009 1:23 PM	@Res - No it ia about iiNet - the other posters have thought to spread the blame by inferring that all or many ISP's are involved. This is just not the case. Telstra and Optus include uplaods in their quots's and Milne from BP has always stated this is to deter torrent users. @Mordd - There is no way Telstra is increasing limits to allow users to download illegal copyrighted material. Do you really think they are that stupid ??? It is you who has interpreted this to mean "copyright movies".
Digger11 Nov 27, 2009 1:27 PM	and mt final comment (before the verdict) on this. Why is it that 95% of the comments here are pro-iiNet or pro illegal downloading ?? 1. Malone does run a great business in that he has convinced hundreds of thousandes of people that his broadband products are better than the rest (when in reality it is just a commodity). Maybe these users now have blind faith that whatever he does must be fine ????? If that is so then I think there is a vacancy for an opposition leader coming up that would suit his skill set. 2. These posters are trying to justify their illegal downloading of movies (an Australian trait). I suspect point 1. is true.
Scengy Nov 27, 2009 2:11 PM	We're not pro-iinet, nor pro-illegal downloading. If you'd like to enter a rational debate on the matter yourself, you're most welcome. However you've shown what can only be described as a passionate hatred of iinet to this point - thus making yourself seem incapable of an impartial discussion. One thing you should really start doing is directly addressing people's questions to you, rather than changing tack. For example above: This current case is about iiNet, but the wider implication, and what seems entirely likely is that AFACT will use this case as a precedent to enforce actions and access to user data _across ALL ISP's_. iiNet will simply be their first port of call. You (or the AFACT lawyers) can't have it both ways. Does 'counting' uploads or not indicate an authorisation of illegal downloads or an incentive for it? iiNet have 'regular' accounts that don't include uploads in quota. They also have 'naked' accounts that do. Some of their accounts also have big quota's. And I'm fairly certain that AFACT, by extension of their argument that the 'freezone' traffic could actually encourage illegal downloads because it 'frees up' quota traffic, are asserting that larger quota is essentially a lure for illegal downloaders. You may have even made a comment along those lines yourself (I'd have to check, but I seems to remember something like that). If iiNet are 'encouraging' illegal downloads by not counting them in regular accounts, then sure they _MUST_ be discouraging illegal downloads by counting them in naked plans? And if Telstra are going to offer obscenely large quota's haven't you yourself in another post suggested that you believe the large quota's are only of use to people downloading illegal content? "So what does Cobden think users with huge dowload limits are doing with it ???" If Telstra are now 'upping' their download quota's are they, by your (and AFACT's) logic, trying to entice illegal downloaders? AFACT are using smoke and mirrors, in a legal sense, by trying to throw doubt over the actions of iiNet (and they've clearly won you over), but much of their strategy relies on an assertion that the iiNet business model has attracted a sizeable number of illegal downloaders, and that they were aware of that as part of their planning, and as a result are 'authorising' this activity. The fact is that AFACT have a list of ip addresses, that have been 'sighted' offering to share copyrighted content illegally. The absolute best they can do is to say that the content was downloaded across the iiNet network (and others if you trace back through the Telstra owned infrastructure). They cannot however identify an end-point of this data sharing. And the thing is that _no_ amount of data given to them by iiNet will give them an end point. The best they can do is get an account holder. The danger there is that the account holder may have absolutely nothing to do with it, and until the end point is identified and the illegal content identified as existing on a storage medium somewhere there's nothing that can be done from a legal standpoint. The end-point hardware/storage medium could be one of multiple pc's in a household. If could be the 'main pc' a childs school laptop, or the neighbours who are stealing wireless access. To determine which would take an on-site computer forensics team. AFACT know the police wont go to those lengths without a LARGE volume of piracy occurring, and AFACT (or their investigators) are clearly unable to provide evidence of such volume breaches. There's further social mechanics behind why the AFACT evidence doesn't marry with accusations as well. Do some research into the bit-torrent P2P system and you'll soon find that 'private' and 'public' trackers exist. And without being a complete moron anyone should quickly identify two things: if you're a serious pirate you're likely using a private tracker. Who here thinks AFACT took files from private trackers? No-one? Thought so. So AFACT most likely grabbed files from public sites. Here's another fact about BT pirate behaviour: if they're downloading of a public site, where there's no consequence (ratio) to them not uploading then they'll likely cut the torrent off when the download finishes. Which completely demolishes argument for 'upload' traffic as quota having any bearing on copyright infringement. Those lovely Telstra users can just download and then not upload. And finally we're talking purely bit-torrent traffic. The uber-serious pirates use the Usenet services. Once upon the day (18 years ago) I may have used it to download a couple of playboy pics, but thesedays the binary newsgroups carry _everything_. And there is _no_ uploading or ratio issues to deal with. Where are AFACT on suing the Usenet providers? Whom, once more, Telstra customers can get their illegal content through without issue. Frankly Digger each time you post you simply come across as a Troll. It's hard to imagine that you are anything other than an AFACT stool pigeon. Not only do you seem to entirely miss that this is a civil case (your continual calls of "guilty!", a notion non-existent in civil cases) but you've a complete lack of ability to intelligently argue and offer counter points. Your last comment? I don't think anyone's going to miss your completely useless trolling posts.
Rhino Nov 27, 2009 3:25 PM	Scengy, He're a virtual applause. You've nailed everything about this person perfectly. Also I think this is personal to Digger. He/she has made personal references such as I will never talk to Dalby or Malone again, and now "when you get inside the company they are just like the rest". This is a personal thing for him/her.
anonymous Nov 27, 2009 3:29 PM	Isn't Digger11 just a creation of the fx dept of the content corporations? You know, one of those ugly trolls that frighten children, but that no adult would take any notice of?
Simon900 Nov 27, 2009 4:38 PM	lol :)
Mordd Nov 27, 2009 6:48 PM	@Mordd - There is no way Telstra is increasing limits to allow users to download illegal copyrighted material. Do you really think they are that stupid ??? It is you who has interpreted this to mean "copyright movies". @Digger - Funny, the AFACT lawyers have been suggesting in the court case that iiNet doing the identical thing DOES encourage illegal downloading on their network. I was simply echoing that "esteemed legal opinion" from the AFACT lawyers, yet you disagree with my point, does this mean that we actually have Digger11 admitting that an ISP increasing its quotas DOES not mean they are encouraging illegal downloads! Wow, stop the press, hold the front page, we have a new headline "Digger11 admits large quotas can be used for only legal purposes!".
TruthSphere Nov 27, 2009 8:16 PM	I think figured it out! Digger11 is just a joker having fun and trying to make AFACT look dumber than they are. Well done mate your doing a great job ;)
CodeSeeker Nov 30, 2009 5:39 PM	They included that iiNet did not have control over the BitTorrent client - meaning, it had no power to prevent the infringing activities for which the client was used. “But if the user isn’t online there’s nothing the BitTorrent client can do to infringe,” Bannon put to the court. Um this logic makes no sense. Its like if you dont allow a person to own a car they can never drive a car? WTF.. umm plenty of cars around they can drive you dont necessary need to own one to drive it.. You can rent one, borrow one, steal one.. Clearing removing someone internet accesas does not stop them from using bittorent. Nothing stops them from acquring a new connection or using someone else connection Second of all, last I checked the business model which reflects stances of a company, are not covered by law.. These fall under something called "Corporate Social Responsiblity", Things such as greenhouse emission, child labour in developing countries. It is not required by law however unsoundly practice may lead to boycotts and such. Sure the by providing the internet has resulted in Film industry becoming an affected Stakeholder. Clearly if AFACT & their legal representatives are unhappy about the negative impacts of ISP like IInet, rather than suing them for failing their "Corporate Social Responsiblity"; they should raise awareness of it by doing stuff like protesting infront of the IInet HQ.. or chain themselves to the gates at IInets Head Office. Alertatively they can try to get everyone to boycott IInet. -ATRUTH ( Australians Taking Response to Undue Threat and Harraseement)