Internet Service Providers (ISPs) are waiting with bated breath as Justice Cowdroy is poised to hand down judgment on the legal wrangling between Perth-based iiNet and the Australian Federation Against Copyright Theft (AFACT) in the Federal Court in Sydney.
Webshield managing director Anthony Pillon said the ruling will "ultimately decide" whether an ISP is responsible for instances of copyright infringement on its network.
“Many ISPs have a long-held belief that their responsibility ends at the pipes: People transact over the network and they have no responsibility for what goes over them,” Pillon said.
“I think AFACT is seeking that ISPs do more [to stop copyright infringement].
“To be brutally honest there are definitely things we as an industry can do that would benefit copyright holders like [forward infringement notices to customers].”
His argument is one central to the case: Do ISPs have a responsibility to forward notifications from AFACT and its ilk to customers? Where is the burden of proof and should ISPs wear the cost of chasing, disconnecting and losing customers?
Some say the Federal Court decision could be a catalyst for sweeping copyright reform. But it is likely the case will be taken to the High Court regardless of who wins this round.
During proceedings last year AFACT alleged iiNet failed to stop its subscribers from downloading and distributing copyright material over its networks. The court also heard the film studios had authorised AFACT or one of its representatives to become an iiNet customer and to download the studio's copyrighted files. AFACT denied authorisation was given.
Maverick Exetel CEO John Linton has slammed iiNet for not forwarding AFACT copyright breach notifications to customers and instead sending them to Western Australia Police.
He said in his blog in 2008 that Exetel uses a small amount of code to send disconnect warnings to customers.
By doing this Linton said it avoided what he saw as an AFACT attempt to build evidence that it harboured copyright infringers and eventually take them to court to set a low-cost precedent to harden copyright.
“Should [AFACT] be successful in getting a judge to rule 'against' an ISP and then subsequently get that judgment upheld on appeal - perhaps as far as the High Court, then they will have achieved very significant progress in reducing the use of the Internet to breach copyright,” Linton said.
Computerworld understands some ISPs will forward legitimate copyright breach notices to customers or even disconnect them before reactivating their service once the notice and remedial action has been taken. The course of action is determined by common law and precedence, and not governed by any one piece of legislation.
During the case, it was revealed iiNet received more than 1350 emails over a seven day period from copyright holders about allegations of breaches. Yet, ISPs have remained tight lipped over the number of copyright breach notices they have received from copyright holders.
iPrimus CEO Ravi Bahati told Computerworld he doubts ISPs will be required to police their networks for copyright infringement or chase down potentially offending customers in the wake of the decision.
“If ISPs are required to police their networks then I think the police themselves will be jealous,” Bahati said.
“But why is our industry constantly under the spotlight? If we do wrong by our customer base then they will leave us, and we respect all decisions and laws in place by the governments.”
He said iiNet “is still a winner” if it loses the case because “the market has already factored-in the worst case scenario and if they [win] then their shares will skyrocket”.
Many ISPs including Optus and Internode said they are eager to await the decision but would not comment until after Thursday and they have digested the ruling.
The case is expected to go to the High Court of Australia regardless of the outcome. Both parties have said they would use the proceeding 21 days to consider an appeal.