Day 21: iiNet attacks film industry’s freezone claims

ISP iiNet attempted a systematic deconstruction of a number of arguments put forward by the film studios in the Federal Court today in an attempt to demonstrate authorisation of copyright infringement on the ISP’s network.

In a continuation of closing statements, senior counsel for iiNet Richard Cobden touched on issues ranging from download quota offers, media releases and discovered documents, to the iiNet freezone and attacks on the credibility of the ISP’s executives, including chief Michael Malone and chief regulatory officer Steve Dalby.

Suggestions by the film studios that the freezone of legal content encouraged illegal downloads drew a sharp rebuke from Cobden, who labelled it an “extraordinary submission”.

“[The applicant’s] ‘infringer’ is someone who uses the freezone available to them so they can buy things off Apple iTunes [access to which is unmetered], and use that to their heart’s content so they have quota left to download other [illegal] things for free,” Cobden said.

“If they’re the sort of people who download things for free, why are they paying for things through the iTunes store?”

Cobden also reminded the court about admissions from the studio bosses under cross-examination that providing legal content should encourage users not to engage in illegal downloading activities.

He again referred to the studios’ view of iiNet’s activities and documents as being distorted by “the applicant’s prism”.

Cobden said that a feature of the applicant’s case was to “fossick” around various documents and attempt to “stitch” them together to create a “mindset where iiNet encouraged infringement” on its network.

Cobden said it was “not a useful exercise” when the subject is a commercial firm such as iiNet.

Examples revisited included a radio advertisement that attempted to explain how much 1GB of quota was in episodes of kitsch American situation comedy The Golden Girls; email remarks by iiNet customer service representatives to users requesting support on BitTorrent-related problems; and the availability of three press releases as torrent files in November 2008.

The studios had used the Golden Girls as an example of how iiNet allegedly encouraged its users to download illegal copies of films. The Golden Girls is not a legally available download. iiNet maintained the reference was intended to be humorous and the fact it was not legally available was “unfortunate” when the radio advertisement was recorded.

Cobden was further dismissive of some 50 pages in the studio’s submissions - labelling them “mundane descriptions of what happens between a user and their ISP” and how any ISP would manage their subscribers.

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