AFACT v iiNet: ISP questions infringement information reliability

The information pertaining to copyright infringements delivered to Internet service provider iiNet by the Australian Federation Against Copyright Theft (AFACT) during 2008 was of questionable reliability, a Federal Court has heard.

iiNet’s legal representative, Richard Cobden, told a Federal Court this week that AFACT had delivered notices of copyright infringement about its users in the form of spreadsheets on CDs and DVDs throughout 2008. The spreadsheets held basic information relevant to the movies allegedly being downloaded over the peer-to-peer BitTorrent protocol, according to Cobden, including the movie title. The DVDs in particular held additional information.

However, Cobden argued that the information delivered to iiNet prior to the initial court hearings in September last year did not include the peer ID of the alleged downloader, even though it was possible to extract such information.

“Those reports were not generated at any time for iiNet, and indeed were not generated in any form until the September 2009 evidence,” Cobden told the court on the third day of AFACT’s appeal against Justice Cowdroy’s decision in favour of iiNet.

The peer ID, Cobden argued, is important to ascertaining which particular computer was used to infringe copyright. The ID was particularly vital to the information AFACT provided as evidence against iiNet user, RC-08, accused of being a prolific movie pirate, and being offered upgrade data quotas by iiNet.

The user RC-08 is believed to have been in a shared house where additional users may have used the same computer to illegally download movies without the knowledge or consent of the user.

AFACT also failed to provide any explanatory notes to iiNet along with the spreadsheets and optical media as to how iiNet would be able to use the data, or ascertain its reliability.

“We were only ever given raw information,” Cobden said, adding that AFACT's attitude had been one of expecting iiNet to know due to its technical nature.

“There’s nothing that says, ‘and it’s by using material in these DVDs that you will be able to start to automate a process by which you can identify some accounts where there are repeats of frequent appearances by the same client ID’.”

Cobden also called the methodology carried out by Danish anti-piracy tracking company, DtecNet, in collating data for AFACT provided to iiNet, alleging a “significant amount” of data matching would have to take place.

DtecNet’s method - which involves acting as a BitTorrent user and downloading films that potentially infringe copyright - could put iiNet at risk of infringing copyright itself, were it to adopt similar practices, according to Cobden.

AFACT has continued to allege that iiNet had authorised copyright infringement by failing to stop users on its network from downloading those movies over BitTorrent.

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