A battle is starting to play out in an Australian courtroom over whether or not ISP’s are ultimately responsible for what their customers download.

AFACT, backed by seemingly every movie studio under the sun has taken isp iiNet (no, they’re not owned by Kraft) to court claiming that iiNet profit from their users download pirated content.

Whilst both sides of the case seem to at the very least have a grasp on the technological platform they are fighting over, the one man who’s opinion will carry the most weight is seemingly has no idea about the technology behind the case.

Following a video presentation by AFACT’s barrister QC Bannon of the group’s investigator Nigel Carson downloading Warner Bros’ movie Batman Begins, Cowdroy asked if he could be shown what other ISPs were facilitating file sharing.

“Can you show me, Mr Bannon, how many other internet providers are providing the same sorts of information? What other ones right now are doing this?” asked Justice Cowdroy.


Um, all of them?

It’s been a while since I left Dodo because they started shaping p2p all the time but even then they still offered access to it. The fact of the matter is that any ISP in the country who 100% blocked p2p would go out of business pretty quickly.

Further to seemingly having no concept of how peer to peer sharing works, or an ISP’s involvement in delivering content to an end user, Justice Cowdroy apparently also can’t tell the difference between a video presentation and actually being online.

“I’d be interested to see this in real life,” Cowdroy said.

“This is actually a video of what he did at the time, so it’s not online now,” Bannon explained, adding that it may in the future give a live demonstration in court.


Somebody actually had to explain to the judge that what he was watching wasn’t the internet.

…No really, this is the guy who’s going to decide whether or not ISP’s are liable for what their customers download.

If the above made absolutely no sense to you at all, let me break it down for you with an analogy. What happened in court today is something like this:

‘Your honor, we are here today because iiNet is responsible for drivers speeding on the roads they’ve built. Drivers pay tolls which mean iiNet are profiting from the drivers speeding.’

‘I see. Go on.’

‘Here is some video footage of cars speeding on iiNet’s roads.’

‘Amazing. I would very much like to see if other road companies allow drivers to speed, can we take a drive on some other roads?’

‘…uh this is video footage of iiNet’s roads, we’re not actually driving right now your honor.’

‘wait what? You mean you can drive on these roads? How long has this been going on for?!?!?’

It might sound ridiculous and hard to believe, and that’s because it is. Meanwhile replace roads with the internet, tolls with monthly internet access costs, driving with downloading and speeding with downloading illegal content and this is exactly what happened on day one of the most important court case regarding the internet in Australia.

The future of our internet is being decided by morons who haven’t the slightest clue on how the internet works or the main principles behind how access to it is obtained.

Normally I wouldn’t care but given what’s at stake here. If iiNet are found guilty, and from the sounds of it AFACT aren’t going to have to try too hard or prove much to win, then ISP’s are going to be looking at covering themselves legally against their own customers.

And does anyone think it’ll stop at pirated movies? Music will soon follow and before you know it your ISP will be sending you a ‘cease and desist’ because you typed the word purple and Cadbury might object.

Instead of better enforcement of existing penalties or campaigning for stronger ones where illegal activity is concerned, AFACT instead are opting to force ISP’s into restricting how Australians use the internet.

What protocols you can use and what you can do with said protocols in my opinion goes way beyond the jurisdiction of copyright protection.

Furthermore once it’s gone and copyright holders have had a taste of controlling what people do on the internet does anyone think it’s going to be easy to reverse the decision?

Nevermind the fact that there’s nothing inherently illegal with peer to peer technology nor the fact that ISP’s simply cannot distinguish copyrighted data from non-copyrighted data.

As for AFACT’s argument that ISP’s make a profit directly related to illegal downloading,

AFACT’s barrister outline its claim that iiNet profits from customers that download copyrighted material and “sanctioned and approved” its customers’ file-sharing efforts.


ISP’s charge a monthly access fee. Download quotas aside the more you download the more your ISP has to pay in data charges, meanwhile unless you’re on a stupid excess fees plan the charge to you remains the same.

As iiNet’s managing director Michael Malone points out:

When people download, that’s a cost to us. The more people download, the more it costs us,” he added. “The evidence will show over the next few weeks that that is incorrect. Heavy download users make less money for iiNet.”


Whilst this is seemingly an easy concept to grasp and understand, why do I feel that this is just going to go completely over Justice Cowdroy’s head and that all AFACT have to do to win is tell Cowdroys the bogeyman will get him if he doesn’t find iiNet guilty.

Surely there’s at least one judge in Australia who knows what the freaking internet is.


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