AFACT, iiNet head for the recess playground

James Riley
Thursday, 15 October 2009 16:32

Opinion and Analysis

Perth-based internet service provider iiNet has emerged quietly confident from the first two weeks of its court fight with the movie industry - represented by the Australian Federation Against Copyright Theft (AFACT) - and will call chief executive Michael Malone as its first witness when the case resumes on November 2.

"We’re happy with the first two weeks of the hearings and we still remain confident of our defence and about our position in relation to the case," an iiNet spokesman told iTWire.

"And we are confident that once the case is finalised iiNet will be vindicated and the allegations will be seen to be unfounded," shortly before jumping on a plane to Cairns for a break from dealing with courtroom Tweets.

Perhaps unsurprisingly in a case where both sides have engaged public relations consultants, AFACT is similarly upbeat about its prospects.

The case, of course, is the one in which movie studios and other content owners have alleged that the ISP iiNet allowed its users to infringe their copyright through illegal downloading. It is fascinating because it tests provisions contained in the US-Australia Free Trade Agreement.

It has been fascinating also, because beyond the technical minutiae of downloads and drop-outs, the case has been about establishing the relationships that grease the wheels of our industry. It explores issues of responsibility around copyright protection that have hung untested for years.

At face value the issues seem straight forward enough: Among them, did iiNet customers use the ISP to illegally download copyright material; is iiNet responsible those breaches by authorising, sanctioning or somehow approving of the downloads; and do the safeharbour provisions of copyright law apply in this case.

And both sides claim solid legal ground (although it has to be said iiNet at times this week, particularly in its arguments about the extent of the illegal downloading, seemed to be running a damages limitation strategy.)

It's fascinating because both side have taken a die-in-ditch stance into the courtroom. And it's a classic big Hollywood money versus big technology money. It's about old-world business versus new-world business.

Throw in some big egos, pricey Silks and legal PR specialists, and that's the circus.

The music industry has been down this road. But they were pilloried for having ignored the online world for years, and without coming up with a viable commercial model for music downloads that let people pay reasonable prices to buy music online.

All that's now history, of course, with a multitude of retail music download services available to Aussie consumers – not least iTunes.

Now for the movie industry. At a time when the best defence against online movie piracy has been rubbish broadband and the high cost of download capacity, the movie industry seems to be pre-empting the arrival of faster cheaper broadband by heading to court.

iiNet chief Michael Malone appears on November 2. He will be followed by iiNet regulatory affairs chief Steve Dalby and chief financial officer David Buckingham.

And the just married Internet Industry Association executive director Peter Coroneos, who returns to Australia from a short break in Greece, may yet get involved. The IIA is still hopeful of being given friend of the court status.

A decision is not expected until next year.