AFACT v iiNet: ISP lacks technical capability to block BitTorrent websites

Internet service provider (ISP) iiNet does not have the technical capabilities to block BitTorrent traffic from websites like The Pirate Bay, the Federal Court of Australia heard today.

iiNet CEO, Michael Malone, took the stand for the fourth consecutive day of cross examination in its civil case with the Australian Federation Against Copyright Theft (AFACT).

It was revealed by AFACT’s barrister, Tony Bannon SC, that about 50 per cent of the downloaded files in question come from The Pirate Bay. AFACT will seek for iiNet to block websites like this should it be successful in the case.

When Malone was asked why the ISP did not take any steps to block traffic to The Pirate Bay, he responded that iiNet does not have the technical capabilities to block the website, given the scale of its customer spread across the country.

“To do a very naïve block of certain sites [is possible] with the addition of more equipment,” Malone said. “I know this because we would have required the equipment to participate in the government’s filtering trials but even then it could be trivially bypassed by customers that want to bypass it.

“To completely and conclusively block asses to The Pirate Bay, I believe it to be beyond our technical capability or that of any ISP.”

Malone alluded to the fact that the ISP pulled out of the government’s Internet content filtering trials due to a lack of appropriate equipment to continue.

However, in March, when iiNet officially pulled out of the Government’s Internet content filtering trial, Malone claimed in a statement, that the ISP was willing to participate in the trial to demonstrate the policy was "fundamentally flawed".

At the time, he said drawn-out negotiations with the Department of Broadband, Communications and the Digital Economy (DBCDE), changes in policy, mistakes on the leaked Internet “blacklist” and corporate social responsibility were factors in iiNet’s withdrawal.

The court also saw a demonstration of The Pirate Bay website, during which Malone was pressed by the AFACT barrister as to whether he believed iiNet’s customers should have access to such a website, to which iiNet’s barrister Richard Cobden interjected that it was irrelevant.

The case so far:

The case started on October 6 but was adjourned by Justice Cowdrey so that Malone did not have to take the stand and then remain silent for two weeks until it resumed on November 2.

All evidence will be heard within the next two weeks, however Melbourne University Associate Professor of Law, Professor David Brennan, has said those interested should not expect a result for some time.

“Once the trial ends, it is highly likely that the court will reserve to take time to consider," Brennan told Computerworld. "In a case such as this, with both legal and commercial significance, it is likely that the period in which the court reserves to prepare its judgment will be measured in months rather than weeks.”

The case is expected to be taken to the High Court of Australia, regardless of who wins this round.

(Read some of the best posts from the first week and second week of the trial.)

In the first two weeks, AFACT, which represents over 30 film studios and TV broadcasters, introduced several witnesses including AFACT's expert witness, Nigel Carson, and representatives from four big film studios, Warner Bros, Paramount, Disney and Fox by video from Los Angeles.

Among many topics discussed the court heard the studios did have agreements in place with BitTorrent — the P2P network identified as being used by iiNet customers to share copyrighted files — but many of these had lapsed.

Paramount's Alfred Perry also revealed BitTorrent was not authorised to display the studio's logo. In iiNet's opening arguments, senior counsellor, Richard Cobden, said many of the studios had contracts with BitTorrent and their logos were displayed on its site.

The court 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. AFACT has previously said there were 94,942 iiNet customer copyright infringements in 59 weeks. iiNet has refuted this claim saying it is "artificially inflated”.

The case opening heard how an AFACT investigator had become an iiNet customer and was downloading copyrighted files. Documents witnessed by Computerworld revealed that iiNet staff were aware of the existence and identity of the customer.

iiNet has also stated that they believe they are legally unable to act as “judge and jury” by disconnecting customers, and that as such their only recourse is to[refer cases of possible infringement to other authorities| articleid: 324798]

Some of the legal issues at stake and the tactics employed by AFACT have their origins in a landmark copyright case involving the University of NSW library in 1975.

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