Revealed: iiNet's film copyright defence

Next Tuesday, Perth ISP iiNet will throw the spotlight on the film industry, accusing it of being the primary copyright infringer in a Federal Court case to be heard in Sydney.

iiNet provided iTnews fresh details of its defence against Roadshow Films and the Australian Federation Against Copyright Theft today. It came less than a week after the Federal Court declined to release the federation's responses to iiNet's defence prior to the case being heard.

"The alleged authorisation infringement is, on the applicant's own case, actually brought about by actions of the applicants," iiNet told iTnews it will argue next week, pointing to how the federation gathered evidence against the ISP.

The ISP said it will also argue that wading through every infringement allegation against customers who use peer-to-peer software would put it at commercial disadvantage.

iiNet will further argue that it encouraged only legal downloads over its network by offering a "freezone" of unmetered, legal content.

It did not offer users software that would enable them to infringe copyright or have a relationship with companies that developed such software, the ISP will argue next week.

Commercial disadvantage

iiNet argued it would need "substantial" and costly IT systems to investigate every infringement allegation, disadvantaging it against other ISPs.

This was assuming it was not already contravening the Telecommunications Act in order to investigate the allegations, an interpretation to be tested in court next week.

iiNet said ISPs received "hundreds of allegations of copyright infringement on a large number of IP addresses".

Those addresses identified the device, rather than a user, that is connected to the internet. The ISP said that the user could be "be the partner, child, flat-mate, employee or customer of the account holder" or even a stranger passing an account holder's unsecured wireless network.

These possibilities made the film industry's proposal of an automated system of warnings and disconnections for copyright infringement "inappropriate", iiNet said.

"Varying circumstances applying to each customer would require case-by-case treatment. This would be an enormously time and resource-intensive undertaking," iiNet said.

"If iiNet were to implement a regime of this type, it would lose customers to other ISPs such as Telstra and Optus who not only do not have such regimes but whose customers' activities, apparently, AFACT and the studios have decided to condone by not issuing notifications; or not pursue the alleged authorisation infringements thereby created."

The cost of implementing such systems needed to be considered when determining whether it could be considered a "reasonable step" in preventing copyright infringement, iiNet said.

The case starts in the Federal Court on Tuesday.