AFACT v iiNet: Malone confronted with Exetel system claims

Legal stoush continues in the Federal Court of Australia

In the legal stoush between the Australian Federation Against Copyright Theft (AFACT) and iiNet, the Federal Court of Australia has heard other ISPs have been able to create automatic systems for dealing with copyright infringement notices.

In the second day of the second leg of the case, legal counsel for AFACT suggested iiNet should have consulted more widely in its attempts to deal with copyright infringement.

The AFACT barrister, Tony Bannon showed iiNet CEO Michael Malone – who was in the stand for a second day – a blog post by head of rival Exetel, John Linton.

In the post, Linton claims that his company has been able to develop a relatively simple program that can deal automatically with user infringements, and that the whole process can be done “easily, at no cost and with no human being involved by us for almost five years- again totally contrary to everything they [interested parties from the Department of Broadband] had been previously told.”

The defence representative, Richard Cobden, objected to the introduction of the evidence, on the grounds that it wasn’t related to the running or practices of iiNet, or indeed even related to Malone himself.

That wasn’t before Malone himself said that “Mr Linton is not a reasonable source of information about anything”.

The ISP has previously alleged in its defence that it would be too difficult to develop such an automatic system, and today Malone continued that defence, alleging that his own calculation to that end was informed by his 10 years working on iiNet’s billing system

There were questions raised by the presiding Judge, however, regarding the relevancy of this material to the case at hand. However, the evidence was later allowed and Cobden withdrew his objections.

Earlier in the day, Malone said despite “compelling evidence” suggesting users were downloading illicit files, such as child pornography, the ISP did not have the legal ability to disconnect users. He also said the ISP receives warrants and other orders to match users' IP addresses suspected of copyright infringement with internal contact details on a daily basis.

The case continues this week.

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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Tags iiNetExetelAustralian Federation Against Copyright Theft (AFACT)AFACT v iiNet

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