Movie Studios Gang Up on Aussie ISP

In case you didn't know, iiNet is being sued for not doing anything to stop its users from downloading stuff off the Internet. It's a case that could change the landscape of the Internet industry in this country if iiNet loses, as Roadshow, Universal, Paramount, Disney, Fox, Warner Bros. and Columbia, as well as Channel Seven, seek unspecified damages.

It's heartening to know that iiNet will be taking the fight to these seven greedy film studios and the Seven network, because iiNet has done nothing wrong! (Seven itself should be taken to court for exposing us to tripe such as Dancing with the Z-grade Stars and Sunrise!)

The media releases issued so far indicate that the film industry wanted iiNet to do more than just pass on the details of copyright-infringing customers to the police; they wanted iiNet to ban the users, disconnect their phone line, burn down their house, kidnap their dog and kill their family members, rather than let the police investigate whether a breach was actually made by the customers. What the film industry wanted to be is judge, jury and executioner.

Thankfully, iiNet actually (seemingly?) cares about the rights of its customers, and preferred to let law enforcement agencies take on the responsibility of finding out if its customers did the wrong thing. This apparently didn't make sense to the suits at Seven and the seven studios. They are using the ISP's own terms and conditions against it: "The first ground is that the ISP provides internet access to its customers and does so for a fee and on the basis of its published terms and conditions, which prohibit the use of the internet access to infringe the rights of others or engage in illegal conduct. [paras 56 and 57]"

The second ground reads like a bunch of hearsay: "The second ground is that the ISP knows that there are a large number of customers who are engaging in continuing infringements of copyright by using BitTorrent file sharing technology — in addition to having been notified over a period of 18 weeks of acts of infringement by a number of its customers. [para 58]" Because we all know that BitTorrent can't be used for legitimate purposes; either way, how is the ISP meant to know what its users are downloading if it's all just random ones and zeroes that originate from all over the world and end up at different times of the day at Joe Schmoe's house?

"The third ground is that the ISP knew that infringements were taking place, took no action to prevent it from continuing, encouraged this form of use of its services, continued to offer internet services to the customers who infringed copyright and through its own inactivity and indifference allowed the situation to continue. [para 62]" Again, iiNet claims to have forwarded the complaints of "the sevens" to the police so that they could properly investigate them. That seems like the most logical course of action.

And the fourth ground: The fourth ground is that the ISP has the power to prevent these know infringements from taking place because it could at any time contact them and require that the customers ceasing infringing copyright, could warn them that they will be subject to sanctions under copyright law and under the ISP terms and conditions if they continue and, if other measures to require their customers to cease infringing fail, suspend or withdraw internet access from those customers. [para 63] So iiNet has to take the sevens' word for it that its customers are breaking the law and provide warnings to them, even though it has no actual proof that they did anything wrong, except from the allegations made by the sevens...

History tells us that it's not like iiNet to want to facilitate anything illegal. In fact, iiNet has always been cautious about not infringing on copyright holders' rights, and the best example of this is when it shut down its news servers (it feels like I write about this in every single one of my posts). That was an understandable (albeit unpopular) decision, but because its news servers actually store content, it could have been argued that iiNet was aiding and abetting pirates.

With peer-to-peer traffic, however, iiNet's servers don't store any data — the data just passes from the source to the end user (like it does with every damn ISP in the country!) through a connection facilitated by iiNet, Testra and the wonderful people who built the undersea cables that allow us to swiftly hoard data from all corners of the globe.

One could be a smart arse and say that the film industry should go after the infrastructure providers for allowing the Internet to exist in the first place, but not even the film industry would have enough cash to fight that case and win it.

So anyway, why is the industry going after iiNet? Is iiNet a victim of its own success? Would BigPond be in the crosshairs if it was still the top dog? Why not go after every single ISP in the nation? I know that Optus has issued infringement warnings to its users before, but have they actually complied with the industry's demands and disconnected users for downloading an episode of Two and a Half Men? (See the list below and laugh at the specific episodes the industry flagged. Imagine getting kicked off the Internet by your ISP for downloading Two and a Half Men — I mean, it's not even a good show.)

The question has to be asked: is this the first suit of many against Australia's ISPs? What will it mean for the Internet in Australia if the film industry actually wins? Is this all just an elaborate plan by film industry goons who are in cahoots with the government to convince them to eventually pass legislation that makes all ISPs snoop on all traffic? Be prepared: get yourself a BitTorrent client that supports encryption, use PGP for your e-mail and do all your Web browsing through an anonymiser.

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