This month saw the start of the watershed court case between West Australian internet service provider (ISP), iinet, and the Australian Federation Against Copyright Theft (AFACT). AFACT is suing iinet for allowing its customers to illegally download movies like The Dark Knight and Happy Feet via websites and torrents. This blog goes into why AFACT is targeting ISPs specifically and discusses the pros and cons of it all.
Bad iinet
There are essentially 2 arguments raised by AFACT as to why iinet should be liable for the illegal actions of its customers:
Firstly, AFACT argues that iinet clearly realises that a large portion of their customers use their internet connections to download movies and have done nothing about it. As AFACT puts it, iinet is wilfully implicit in the illegal downloading of its customers.
Secondly, over the past year, AFACT has forwarded to iinet the IP addresses of its customers that have been illegally downloading content, but iinet has done nothing with this information. AFACT argues that iinet should have, at least, delivered these infringement notices to its offending customers but in reality have been aiding copyright infringement.
Snails and Cocaine
In its defence against these allegations, iinet relies on Australia Post.
iinet argues that Australia Post is not required to review the contents of all mail sent through its vast distribution network. In the same way, iinet shouldn’t have to look through all of the data passed to and from its customers in search of illegal activity. iinet uses the analogy that if cocaine is sent via snail mail, Australia Post would never be prosecuted. In the same way, should ISPs be held responsible for the actions of its customers?
Disconnection
Commentators have argued that, by AFACT winning this case, all ISPs will be forced to become judges and executioners in all internet infringement matters. ISPs will be forced to weigh up whether a customer is downloading copyrighted content and if so, decide whether to disconnect the customer or not – without any formal legal process to look after the rights of the customer. With the internet becoming an integral part of our professional and personal lives, disconnection could have some heavy implications on some users.
iinet argues that its up to government and the legal system to enforce, hear and ultimately deal with copyright infringements as ISPs aren’t qualified to deal with copyright law enforcement.
Implications for Music
The outcome of this case has implications for the artists, the music industry and internet users more broadly. If AFACT win, ISPs will be forced to cut their customers’ internet connections should they be found to be downloading copyrighted content – which would definitely include music – a huge win for music companies and labels in their battle against mp3 sharing and illegal music dowloading.
The case is expected to continue for many months and may be appealed down the track – so a final verdict is still some time away.