AFACT v iiNet: Malone won't appear for two weeks

Court hears studios confirm agreements with BitTorrent and that they authorised AFACT to download their movies over P2P on iiNet network

iiNet CEO Michael Malone will most likely not take the stand in the Internet Service Provider's (ISP) civil case against the Australian Federation Against Copyright Theft (AFACT) for another two weeks.

With AFACT due to finish presenting its witnesses to the Federal Court of Australia in Sydney later this week, it is understood Justice Cowdrey will adjourn the court for two weeks instead of making Malone appear.

If the ISP CEO were to take the stand this week he would not be able to talk about his testimony until both AFACT and iiNet lawyers had finished asking him questions. As the case is being run on a two-week on, two-week off and then two-week on again schedule, it is unlikely the court will make Malone appear as it could mean he has to remain silent about the case for two weeks – a circumstance that would be difficult for the CEO of the company involved in the proceedings.

Malone's appearance on the stand – most likely to be November 2 – will signify the beginning of iiNet's defence. AFACT started its case with an appearance by its executive director, Neil Gane earlier this week.

This week AFACT has introduced a number of witnesses including AFACT's expert witness, Nigel Carson, and today representatives from four big film studios, Warner Bros, Paramount, Disney and Fox by video from Los Angeles.

Among many topics discussed in this morning's proceedings, 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.

An iiNet representative told Computerworld 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 this and has previously said there were 94,942 iiNet customer copyright infringements in 59 weeks. iiNet has refuted this claim saying it is "artificially inflated”.

In the opening case it was revealed an AFACT investigator had become an iiNet customer and was downloading copyrighted files. The fact iiNet staff were aware of the existence and identity of the customer was also revealed in documents witnessed by Computerworld.

The case has created a storm of interest in the media and public but does not finish until mid-November and many predict it will be taken to the High Court of Australia on appeal regardless of the outcome of this round.

Stay tuned to Computerworld for more information.

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