Fran Foo | November 25, 2008
THE film industry's copyright watchdog may begin prosecuting individuals in Australia who use the internet to illegally share files.
Last week, a group of film and television giants launched action in the Federal Court against Perth-based internet service provider iiNet for allegedly doing nothing to stop its customers illegally swapping movies and TV programs.
The group comprises 34 applicants, including Warner Brother, Sony Pictures, Disney and the Seven Network.
Represented by the Australian Federation Against Copyright Theft (AFACT), it claims iiNet customers used BitTorrent to swap movies and programs such as American Gangster and Mama Mia! as well as popular television shows such as Heroes and Two and a Half Men.
The federation said iiNet was notified on 18 occasions to act against offending customers but did nothing over a five-month period.
Communications Minister Stephen Conroy said the Government was monitoring the lawsuit but could not comment as legal proceedings were ongoing.
Unlike the music industry, this is the first time the film industry has sued a service provider for alleged acts of its customers.
In the US, several actions have been taken against internet users, but not ISPs. Industry observers are questioning whether individuals are next on the list and why the action is against iiNet, rather than larger players such as Telstra and Optus.
So far AFACT has not attempted to prosecute individuals for illegally sharing copyright movies over the internet.
Asked if individual infringers were safe from AFACT's microscope, a spokesperson said: "We're not ruling anything out."
The spokesperson said the federation had no comment to make on Telstra or Optus.
Law professor and intellectual property expert Kimberlee Weatherall said the onus would be on AFACT to prove that iiNet "authorised" its users to infringe.
"Legally, authorise doesn't necessarily mean give permission," Ms Weatherall said. "It's not a straightforward case. The court will look at a series of factors in determining authorisation."
Simon Hackett, who runs Adelaide ISP Internode, said ISPs should not be liable for the actions of customers.
"The industry remains of the view that ISPs aren't policemen.
"The content industry should take legal action against end users if it believes they have broken the law. ISPs are like Australia Post: we just deliver," Mr Hackett said.
IiNet chief executive Michael Malone described the AFACT suit as "crazy".
"Our view is: what a marvellous problem for the industry to have. People are so desperate for their product that they're willing to steal to get it. In this case AFACT has a great problem and they can fix it.
"The way to fix it is not to tell people they're not allowed to have it, but to make their product available at a realistic price and make it available promptly.
"Then, if people steal, prosecute them," Mr Malone said.
IiNet has forwarded AFACT's complaints to the WA Police but he says that route is a dead end.
"AFACT is arguing that they don't want to talk to the police, and we should just cut the customers off. I say that's crazy.
"Our primary product is not just broadband but naked DSL, so if we cut off someone's broadband we're cutting off their telephone line as well. How would they call the ambulance if there was an emergency?"
Some members of the legal fraternity brushed aside Mr Malone's argument, saying: "If a customer doesn't pay their bill will iiNet bother about their ability to call the ambulance?"
One source close to the case said: "They went after iiNet and not Telstra or Optus because there was a strong case against iiNet.
"AFACT isn't afraid of the size of their legal teams or how large these ISPs are."
According to Ms Weatherall, by going after the ISP and not individuals, AFACT was sending a message that it meant business.
"This is an indication that they're serious and whatever the outcome this case would reach some new conclusions in law," she said.
AFACT is suing iiNet for unspecified damages.
Gilbert + Tobin partner Michael Williams, who successfully sued Kazaa, Stephen Cooper and his ISP E-Talk/Com-Cen for copyright infringement, is representing AFACT.
The proceedings will be before the courts on December 17.