'Thanks for choosing iiNet. Happy downloading.': invitation to infringe?

By Matthew Lentini
Wednesday, 04 November 2009 08:11

Home IT

Australia's third largest ISP iiNet has been accused of inviting illegal downloads through its marketing messages by the Australian Federation Against Copyright Theft (AFACT) in the Federal Court today. As iiNet CEO Michael Malone took the stand for the third successive day in the dispute, AFACT alleged that iiNet has encouraged copyright infringement through its marketing strategy and unwillingness to act on copyright infringement notices.

AFACT alleged that iiNet's presentation of a gigabyte of iiNet bandwidth or two as "more music downloads and more time on Youtube" to customers is a potential encouragement of copyright infringing mp3 downloads.

iiNet's welcome email was added to the downloading debate, with its sign off reading, "Thanks for choosing iiNet. Happy downloading."

If iiNet is proven to be authorising copyright infringing downloads, AFACT claims iiNet would not be protected by the safe harbour provisions of the Copyright Act and would be liable for damages in relation to any proven cases of copyright infringement by iiNet users.

Malone defended mp3 downloads, identifying legal options such as downloading from Apple's iTunes.

"We oppose that we are authorising these transactions and that we should be liable," said Malone of Category A copyright infringements, which deal with the transmission of copyrighted content.

"I don't believe that every young person in Australia is downloading illegally through BitTorrent," said Malone.

AFACT barrister Tony Bannon rejected iTunes as being relevant to the debate as such downloads fall under 'freezone' downloads that are not attributed to an ISP customer's download limit and so not pertinent to iiNet customers as part of their download limit.

Bannon alleged that iiNet accepts that there are downloaders of unauthorised copies of AFACT constituents' copyrighted materials on the iiNet service and that iiNet has not actively sought to avoid these users subscribing to their service.

Malone replied to this allegation saying, "I'd prefer them to go to someone else so they'd get sued."

The issue of iiNet's failure to forward copyright infringement notices from AFACT to customers was raised once again.

An email from an Internet Industry Association (IIA) representative addressed to Malone presented in court stated that iiNet forwarding copyright infringement notices to customers would lead to an implication that ISPs should be taking responsibility for customer copyright infringement.

A separate email between an iiNet employee and Malone that was presented read, "These guys just don't get it. We are not obligated to do squat on the AFACT allegations."

Yesterday it was established in court that iiNet had no written policy to cover dealings with customers who are repeat copyright infringers.

Condition 1 of the safe harbour provisions of the Copyright Act states that an ISP must adopt and implement a repeat infringer policy in order to be covered for damages by the provisions. AFACT has interpreted iiNet's failure to disconnect or warn customers of their copyright infringement notices as a violation of this condition.