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Thursday, 19 November 2009 15:59

EU a distant comfort for iiNet in AFACT case

The legal arguments in the iiNet-AFACT case being heard in the Federal Court in Sydney echo those that saw the creation recent 'internet rights' reforms in the European Union – and both sides have been watching these developments with interest.

As part of its closing argument in court today, iiNet argues that it cannot be expected to police its users.

It has maintained through the case that it does not favour copyright holder’s having their property rights breached. But it says allegations are just allegations until their have been tested – and the “logical” place for allegations to be tested is the courts.

"That's consistent with our position all along," an iiNet spokesman told iTWire. "There has to be due process … an allegation is not offence."

Acting on behalf of movie studios and other content owners, the Australian Federation Against Copyright Theft is litigating against the internet service provider iiNet, alleging the company allowed users of its service to illegally download copyrighted material, and did not have adequate provisions in place to reasonably stop those illegal downloads.

It is exactly a year tomorrow since the case began. It has excited world wide attention as a test case in a difficult area. And in the EU, the industry has taken a step ahead through a Telecom Reform package introduced by Commissioner Viviane Reding that sets out a series of 'internet rights.'

Under the reforms, the EU has decided access to broadband is a right, and that users cannot have their connection terminated “arbitrarily” without due process. It effectively outlaws "three-strikes policies" that copyright owners have sought to impose in many jurisdictions – including Australia – that would see ISP customers cut off if they were found to have illegally downloaded material repeatedly after three warnings.

iiNet has made no suggestion that the developments in European have any bearing on its own case. But it does suggest the reforms in the EU highlight how consistent the issues are across the world, and highlights the evolving nature of the processes dealing with these issues.

"ISPs are just carriers. They are like Australia Post in that sense," the iiNet spokesman said. "They can’t be judge and jury on allegations."

"There needs to be some kind of third party review of that allegation, and the logical place for that is a court."

iiNet spent today summing up its case, and will resume next Tuesday. The court will also rule on Tuesday whether or not the Internet Industry Association is granted friend of the court status.

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