Making tech decisions without understanding of tech
This seems like another case where a significant court decision will ultimately be made upon the basis of personal leaning of the judge to the general "rightness" of a thing rather than the workability of the ruling.
If the ruling goes against iiNet (and so all other ISPs in Australia), how is packet monitoring going to guarantee that it is pirating activity that is going on? Assuming, for simplifying argument, that only the bittorrent protocol is going to be targeted by what can only be deep packet inspection, how can it be possible to ensure that the protocol is transporting pirate material rather that non-pirate material? After all, bittorrent is a convenient method of sharing files without needing to configure server capabilities in your PC, which exposes you to a high security attack risk.
The only way to achieve this is for the ISP to fully download the target of every addressed bittorrent exchange to verify that the target is indeed pirate material. The web published descriptions provided for a torrent hash are, after all, legally only hearsay until that it is actually proven that the target is what the published descriptions say it is.
So, if the case goes against iiNet, does this mean that they will end up being taken to the high court again by someone who has had their Internet connection disconnected for "piracy" when the customer has in fact been downloading via bittorrent only non-copyright material?
And in the case of disconnection of a "naked" DSL connection, will the ISP be liable for the removal of the ability for the customer to make emergency services calls (which are possible in the Australian VoIP environment)?
Fundamentally, a "quick fix" tech solution to prevent the type of piracy that this court case is all about is not possible without causing more wrongs than rights. Let us all hope the judge is savvy enough to recognize this and have the enough inherent personal justice to hold a straight line under the high pressure political and corporation onslaughts.