Day 17: iiNet clutching at legal "splinters", studios claim

Ry Crozier | Nov 10, 2009 3:02 PM
Film industry says case law in their favour.

Barristers representing the film industry claimed today in the Federal Court that case law referenced in iiNet's defence could potentially work against the ISP.

As the copyright case between the two parties entered its second day of closing statements, the film industry spent a considerable portion of the morning session presenting to Justice Cowdroy its reading of various judgements, including Adelaide Corporation v. Australasian Performing Rights Association, which iiNet had previously referenced in its defence.

The film industry's lead barrister Tony Bannon claimed that the Adelaide judgement supported the film industry's argument rather than iiNet's.

"Like much of the approach of iiNet in this case, they're grabbing onto splinters of statements in cases but also splinters of evidence in statutes," Bannon told the court.

"iiNet's argument is 'Please find our reasonable agreement which we reasonably entered into with our customers would be unreasonable for us to enforce'."

Bannon said that was "an absurd contention. But it's what they're driven to."

Bannon also revisited the allegation that iiNet was profiting from keeping illegal downloaders on its network.

He said that the structure of iiNet's internet plans, where there was a named account holder "without limitation of who may use the account", fed into the ISP's commercial interests.

"[iiNet chief Michael] Malone accepted it was in iiNet's commercial interest to be able to offer plans which did not require usage of the service to be limited to the named customer [account holder]," Bannon said.

"iiNet wants the benefit of selling plans which don't restrict usage to a particular customer. They derive the benefit of unnamed persons being able to access that customer [internet] account."

This was because the ISP had a commercial interest in maximising demand for bandwidth quota, it was alleged.

"[Malone's] evidence was there was a commercial objective to attract as many customers as possible but also to push them up to higher plans. Higher plans mean more money," Bannon alleged.

"The very persons with demand for bandwidth [quota] had an interest in downloading, and downloads count to your bandwidth quota unless you're doing it in the freezone.

"The very persons they [iiNet] have an interest in making money out of would be the very persons not interested in using freezone."

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