Hollywood's BitTorrent prosecution

The Hollywood movie studios return to the federal court in Sydney tomorrow in a matter that should remove the doubt surrounding the obligations of internet service providers (ISP) to prevent illegal copying of copyright material.

If the case against Perth-based ISP iiNet goes the way the studios want then ISPs throughout Australia will be forced to disconnect thousands of their customers who are using the world's most popular file sharing software BitTorrent.

Thanks to some crafty snooping of their own, the studios know the identity of thousands of Australians who have been using BitTorrent to illegally copy material. And thanks to iiNet the identities of many of those illegal copiers, who happen to be iiNet customers, have been passed to the West Australian police.

Of course, if the WA police decided to pursue all those individuals personally for breaching copyright laws then the case in the federal court would become a sideshow.

A mass prosecution of thousands of Australians for breaching copyright by downloading movies through a peer-to-peer file sharing network would really bring home the dangers of not paying for intellectual property.

But because such a court action would probably be against teenagers it would cause such a political uproar that no state government would allow their police to go near it.

The Hollywood studios, through the auspices of the Australian Federation Against Copyright Theft, began their latest campaign against illegal copying in June.

They employed an investigator, Aaron Herps, and got him to sign up as a customer of iiNet. He was encouraged to illegally download material using BitTorrent over a four month period. Users of BitTorrent share files with each other over the internet.

The studios then used Dtec Net Software to identify the iiNet users who were involved in copying films, videos and TV programs. The Dtec Net Software identified Herps as a participant in the file sharing during the 18 week period when BitTorrent activity was being monitored.

The Bit Torrent users were copying films such as I Am Legend, Happy Feet, Ocean's Thirteen, American Gangster, Mama Mia!, Blood Diamond, Harry Potter and the Order of the Phoenix and Surf's Up. TV shows that were copied included Heroes, Prison Break, The Simpsons, Family Guy.

The identities of all the thousands of iiNet customers that used BitTorrent to download material between July 2 and October 30 were supplied to iiNet managing director Michael Malone. The IP address of each individual was recorded on spread sheets, on CD-ROMs and DVDs. Malone handed the material to the police.

The fact that iiNet did not contact Herps and did not kick him off the iiNet network is critical to the claim by the studios that iiNet did nothing when it knew infringements were taking place.

The studios go a step further and claim that iiNet encouraged and authorised this form of use of its services and through its own inactivity and indifference allowed the situation to continue.

Tomorrow's directions hearing will set a date by which iiNet will have to file its defence. It is already clear it will fight the action. The company issued a statement in November that it will vigorously defend itself against the allegations that it authorised breaches of copyright. It said it did not support infringement of copyright.

If Justice Dennis Cowdroy agrees with the studios in their claim that iiNet had an obligation to terminate its customers who were repeatedly breaching copyright then we may be about to enter a new era in copyright protection.

At the moment the law obliges ISPs to have in place policies for protecting copyright.

But so far that has been little more than a statement of principle on a website. One of the big selling points for ISPs such as iiNet is that they combine high speed ADSL2+ connections with generous download limits. The limits are particularly generous during off-peak periods.

It is during off-peak periods that BitTorrent can be busily downloading material while the customer sleeps.

The studios have accompanied their case with a well funded public relations campaign which draws strong links between the iiNet case and two high profile copyright cases – Kazaa and Cooper.

Kazaa was a file sharing system similar to BitTorrent except it was used for music. The operators of Kazaa were found liable for copyright infringement and were forced to place filters on their software. An appeal to the full court of the Federal Court was settled and Kazaa paid $US115 million in compensation.

However, unlike iiNet, Kazaa encouraged copyright infringement by urging users to download more material.

The Cooper case involved a pirate music website known as mp3s4free.net and an ISP called E-Talk/Com-Cen. The ISP was found to be liable for authorising infringements of copyright.

The judgement included the comment that the ISP could have taken steps to bring down the website. It said that authorising illegal copying had to take into account any actions taken to prevent it occurring. The judgement was affirmed on appeal.

Unlike the iiNet case, the Cooper case involved sharing of revenue. The two parties were closely linked in a commercial sense. In this case iiNet has no control over BitTorrent and no commercial relationship with BitTorrent.

If the studios lose the iiNet case will they go to the next level and take civil action against the thousands of Australian users of BitTorrent?

That would test out how serious they are about stopping peer-to-peer file sharing of illegally copied material.