AFACT vs iiNet: AFACT alleges iiNet argument "deficient"

AFACT argues iiNet’s terms and conditions are very much enforceable

iiNet is asking the court to find the company’s own terms and conditions to be unenforceable and unreasonable, AFACT has today alleged in court.

In day 17 of the ongoing iiNet vs AFACT case, counsel for AFACT, Tony Bannon, said that, as iiNet’s terms and conditions reserve the right to terminate the contracts of alleged illegal downloaders, and also stipulate that their service should not be used for copyright infringement, iiNet’s argument that the terms were unenforceable, was “deficient.”

He said that the iiNet case amounted to saying, “Your honour, please find that our reasonable agreement that we reasonably entered into with our customers, is unreasonable.”

Bannon also declared iiNet’s defence on the grounds that the Telecommunications Act didn’t permit it to use personal data to find and warn infringers was “without substance”, as other ISPs did not share similar concerns.

The AFACT case also today referred to several prior cases, including the University of New South Wales suit, as well as other cases involving Universal Music against a single individual, and separate suits by the Australasian Performing Rights Association (APRA) against Metro on George and the Corporation of the City of Adelaide.

In the latter case, Adelaide Corporation was sued by APRA for allegedly ‘authorising’ the performance of copyrighted works on their premises.

The case was then taken on appeal by Adelaide Corporation to the High Court of Australia, which was upheld in their favour, largely on the grounds of the idea that they had no ability to ‘control’ the found to have given prior permission.

However, Bannon said the difference between Adelaide and the current case was that iiNet specifically reserved the right to terminate or take steps to suspend, or threaten suspension, specifically if content access obligations on the part of the user were breached.

“On close analysis, what they [the Adelaide corporation] demonstrates is that the majority were clear that if one could have identified a term which gave a right [to the service/performance provider] in respect to content of the performance, then it would have been permission,” he said.

He also said that control of content or access, ownership of facilities and knowledge of reasonable suspicion of unlawful use of facilities all played important parts in determining permission or authorisation.

The case continues.

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

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