AFACT’s closing statements have focused on the admission by iiNet (ASX: IIN) executives they considered the information provided in AFACT’s copyright infringement notices as ‘compelling evidence’ rather than ‘mere allegations’.
In the final days of the civil case at the Federal Court of Australia, AFACT barrister, Tony Bannon SC, highlighted the manner in which AFACT investigators had tracked copyright infringements.
He said they had used the DtecNet service to download a portion of the file as well as recording: The IP address; the time at which the file was accessed and the date using universal time code; the protocol and the hash value — a string of characters used by BitTorrent clients to verify the data being transferred; the studio (Sony); and peer identification.
“We draw attention to fact that they were publicly saying it was a mere allegation where we now know that before proceedings commenced that they considered it compelling evidence,” he told the court.
iiNet chief executive officer, Michael Malone, whose cross examination was referred to several times by Bannon, sat in the gallery watching proceedings.
Bannon cited a paper from the University of Washington, which suggests “a more thorough approach to detecting infringement in BitTorrent would be to adopt the stated industry practice for monitoring the Gnutella network: in the case of suspected infringement, download data directly from the suspected user and verify its contents”.
“There is a massive number of repeat infringements, but there is also a very large number of single-instance infringements identified,” Bannon told the court.
He said iiNet’s use of its playpen policy, which limits internet access to customers who have not paid their accounts, was an example of the ISPs ability to issue infringement notices.
iiNet encouraged users to engage in copyright infringment in a number of ways, he told the court.
“In particular, iiNet is encouraging users by not limiting or suspending users identified as infringing copyright or otherwise deter them from that course.”
On Remembrance Day, the court adjourned just before 11am for a few minutes.
Bannon further alleged that the ISP's business plan is built on selling bandwidth to customers without holding the customer responsible.
“We think it is reasonable to do so,” he said. “The consequence is [they] are in a position to control the activity because [they] can control access to that service… that service is used… to engage in illegal activity.”
He said in light of iiNet’s successful integration with Westnet, it was a “nonsense” to say the ISP could not deal with the administration of infringement notices.
“You can’t improve your position by the fact that you’ve got lots of infringers,” he said. “They are taking the benefit of so many customers infringing as the reason they shouldn’t have to do anything; it’s counterintuitive.”
Bannon also remarked on the development of a code of conduct by the ISP industry.
“…there is no doubt there is a core of combativite ISPs, of which iiNet appears to be one of them,” he said.
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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15 Comments
Enigmatic
1
What a load of rubbish. There are so many glaring holes here, it isn't funny.
The issue has never been the imposing of infringements but in iiNet's ability to KNOW when an infringement has occurred. Torrents are now encrypting the data that is sent to the point where it is not possible for the ISP to know if their customer is downloading illegal material without invading their privacy to do so.
Just to show how ridiculous this is though... Where does it end?
It it becomes iiNet's resopnsibility that their service is not used for criminal activities, does that mean they have to monitor and read every single email that is sent? Every chat that is made? Just to make sure people aren't using their internet to organise crimes? Don't they have to become big brother in order to be able to ensure this?
It simply isn't feasible...
We don't go after Telstra when terrorists use phones to commit crimes, we don't go after taxi's who carry criminals, or public transport which may be used as a getaway for a crime. The onus should be on those who COMMIT the crimes, not on those who provide LEGITIMATE services which are being used in a NON-LEGITIMATE way.
How about we make the government responsible who pay to support people who are committing crimes? Why not make it the government's responsibility that they don't give money to anyone who is a criminal? Impossible? And yet we try to make ISP's responsible for the activity of their customers!!!
Telstra Sux
2
One of the things about
One of the things about Bannons argument is that with the cost, time and effort involved in "buying" a region encoded, DRM protected, copy of the movie, is the exhorbitant cost of the said product - most of which are not available in Australia;
That said, if basically all of the downloaders would not have paid for the movie in the first place, how can Bannon and his employers be stating that "it affects their revenue".
These people are greedy and dishonest.
Anonymous
3
"does that mean they have to monitor and read every single email that is sent?" By Enigmatic.
They already are. :-)
Anonymous
4
"does that mean they have to monitor and read every single email that is sent?" By Enigmatic.
They already are. :-)
You know which they I mean. welcome to the global prison. :-)
Anonymous
5
"does that mean they have to monitor and read every single email that is sent?" By Enigmatic.
They already are. :-)
You know which "they" I mean. welcome to the global prison. :-)
Anonymous
6
This the same as suing the hardware store or supermarket for selling the murder weapon. iinet is providing a service - it is not their responsibility to monitor what people use it for, nor should it be.
Besides, this sort of monitoring is illegal in the first place. Privacy Act anyone?
This will never fly.
KB
7
I wish there was a way to get everyone to stop purchasing anything that is remotely related to the people associated with AFACT. I wonder what would happen if they had no one buying a CD, DVD or going to the movies for 6 months or so.
I am starting to wish I could get a refund on the 500 odd DVDs that I have in my bookcase. What a pack of idiots.
Bungarra
8
Much bigger issue! This is similar to that of a used car salesman being sued for facilitating car theft as some of the cars he sold to customers were stolen as the owners left their keys in them.
A much bigger issue is the extension of copy right by 20 years which was imposed on Australia by the US in the free trade agreement. Long term patents / copyrights restrain innovation.
Mickey mouse was adapted from (ripped off?) another cartoon artist. When ever rules are relaxed, innovation proceeds rapidly. The US depended allot of IP from the Brits, and did not pay much, ask Mr Dickens, now China is doing much the same.
Most innovations are a product of the civilization. Time that the copyright holders who benefit, contributed more for that right. The claim for unique inalienable rights to an innovation is difficult at the best. Whose idea was it first? Newton said that he could see a great distance as he was standing on the shoulders of those who went before.
Anonymous
9
Got to love how they sit in an Australian court and then use US UNI's books/papers etc, and then tout it as what Australian ISPs should be doing with their services.
It's almost as if they think they are in the USA and thus treat everything as such.
And they expect the court to force ISPs to download whole files from bit torrents just so they can tell who is a pirate or not, isn't that what they want to ban?
TuffGuy
10
Let us not also forget these are the same people that impose region locks on hardware because they don't want us going to another country buying a product for a realistic price, they want us to buy our movies and games and whatnot here in Australia so they can rip us off. Yes we should all stand up and support AFACT and curse those damned pirates, aaarrrrrrrgh
snoo
11
I don't understand why AFACT expected iiNet to forward their notices or (worse still) disconnect users on a suspected copyright infringement.
iiNet isn't paid by the copyright owners to uphold their legal rights, and certainly can't be compelled to forward warnings to customers that aren't verified. If iiNet disconnected me on the basis of an AFACT suspicion, I'd sue them myself.
The analogies to suing Telstra when crimes are organised over the phone or tollways when bank robbers make their escape are valid. AFACT is expecting a service provider to scrutinise every user at substantial cost - it isn't their job.
The only winners out of this are the lawyers, as usual. The manufacturers of DVD-recorders better watch out, I hear AFACT has a staff member illegally recording movies on Friday nights and is about to sue both the manufacturers of the machines and the blank DVDs! (joke)
Anonymouse
12
The only person they can prove did some copying was the investigator, but the investigator was authorised to do the copying, so it's not an infringement!
Hooray, case closed.
harry
13
AFACT represents the real pirates.
Anonymous
14
I understand the studios wanting to protect their copyright. But since when did a notice from AFACT have the same weight has a court order or ruling, because this is exactly what AFACT are trying to claim.
The fact remains that no matter how compelling the evidence is that AFACT provide, their notices are still only allegations until a judge in a court hears from all parties and makes a ruling or issues an order.
AFACT do not have the power to make rulings and issue orders, but they would have us all believe that their notices carry the same legal weight.
Courts have impartial judges, who hear evidence provided under oath (with criminal sanctions if the testimony is falsified), and respondents have the right of reply. Only after this process has been followed does a judge make a ruling or issue an order. On the other hand, AFACT is not impartial, face no sanctions if the evidence is wrong or falsified, and there is no process for the people they accuse to respond to the allegations, yet they feel their notices should be binding on ISPs.
The court needs to put these clowns back in their place.
Anonymous
15
I understand the studios wanting to protect their copyright, but since when did a notice from AFACT have the same weight has a court order or judgement. This is essentially what AFACT are claiming.
The fact is that, no matter how compelling the evidence that AFACT provides, their notices are still only allegations until a court makes a ruling or issues an order. Absent of this, AFACTs notices carry no legal weight whatsoever.
Courts have impartial judges to consider evidence, hear testimony provided under oath (with criminal sanctions for misleading or falsified testimony / evidence), and give the accused a right of reply; only after this process has been followed does a judge make a ruling.
AFACT is not impartial, is not subject to any sanctions if their evidence is faulty or falsified, and provide no right of reply, yet they feel their notices are as legally binding as if they had the weight of a court order or ruling behind them.
The court needs to put these clowns back in their place!
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