Australia’s third largest internet service provider (ISP), iiNet, has been accused by the Australian Federation Against Copyright Theft (AFACT) of encouraging illegal downloads through its marketing messages.

According to Sydney Federal Court documents, AFACT alleges that iiNet has invited copyright infringement through its marketing strategy and unwillingness to act on copyright infringement notices.

iiNet’s presentation of a gigabyte of bandwidth or two as “more music downloads and more time on YouTube” to customers is a ‘potential encouragement of copyright infringing mp3 downloads’, according to AFACT’s allegations.

The internet company’s welcome email was also singled out in the downloading debate, with its sign off reading, ‘Thanks for choosing iiNet. Happy downloading’.

iiNet CEO Michael Malone defended mp3 downloads, identifying legal options such as downloading from Apple’s iTunes.

“We oppose that we are authorising these transactions and that we should be liable. I don’t believe that every young person in Australia is downloading illegally through BitTorrent,” said Malone.

AFACT barrister Tony Bannon rejected iTunes as being relevant to the debate as such downloads fall under ‘freezone’ downloads that are not attributed to an ISP customer’s download limit and so not pertinent to iiNet customers as part of their download limit.

Bannon alleged that iiNet accepts that there are downloaders of unauthorised copies of AFACT constituents copyrighted materials on the iiNet service and that iiNet has not actively sought to avoid these users subscribing to their service.

An email from an Internet Industry Association (IIA) representative addressed to Malone presented in court stated that iiNet forwarding copyright infringement notices to customers would lead to an implication that ISPs should be taking responsibility for customer copyright infringement.

IIA chief executive Peter Coroneos said copyright enforcement is the responsibility of the plaintiffs and not ISPs.

“The IIA has had a long standing view that intermediaries including ISPs, cannot be liable for the conduct of their users where they have limited knowledge or control over what those users are doing – this is a case in point,” Coroneos said, speaking broadly about ISP copyright enforcement.

Coroneos said AFACT should pursue the matter in court and not with iiNet because they only have allegations, not evidence.

“To ask ISPs to threaten customers and interfere with the Internet experience, and place sanctions would only be appropriate with evidence,” explains Coroneos.