AFACT v iiNet: "We should not be doing AFACT’s work"

Cross examination of iiNet chief regulatory officer, Steve Dalby, continues on day 15 of the landmark copyright case

iiNet had no intention of forwarding copyright infringement notices to customers without court orders, the Federal Court of Australia has heard as part of the Australian Federation Against Copyright Theft (AFACT) case against the internet service provider (ISP).

iiNet chief regulatory officer, Steve Dalby, took the stand yesterday afternoon. His cross examination continued today, revealing that despite numerous letters from AFACT in 2008 outlining alleged copyright infringement concerns, the internet service provider (ISP) took the stance it "should not be doing AFACT's work".

Dalby said AFACT was asking the ISP to take steps it could not do. He said it would have been a waste of resources to do so.

“We were not going to take any action to issue notices,” Dalby said.

A draft response from iiNet to AFACT, which was tabled as evidence in court, did not contain an effort to clarify the meanings of certain legal terms in the letters. Shortly later, Dalby revealed that the response had been written after iiNet had decided not to take action.

In a heated confrontation, AFACT barrister, Tony Bannon, accused Dalby of presenting “completely and utterly misleading” evidence to the court and failing to inform Justice Cowdroy in his affadavit that iiNet had no intention of pursuing AFACT's requests last year.

“By 16 July [2008] you adopted a position where it didn’t matter what additional information you received, you were not going to take a step?” Bannon asked.

“...Our position was that we should not be doing AFACT’s work,” Dalby replied. “If we had received authorisation by way of court order...that would have changed our position.”

Yesterday, iiNet moved to reassure customers that it never supported breaches of the Copyright Act, following chief executive Michael Malone's three and a half day stint in the witness box, during which he said iiNet does not have the technical capabilities to block BitTorrent traffic from websites like The Pirate Bay.

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 torefer cases of possible infringement to other authorities

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 iiNetbittorrentAustralian Federation Against Copyright Theft (AFACT)AFACT v iiNetFederal Court of Australia

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