AFACT’s closing statements have focused on the admission by iiNet (ASX: IIN) executives they considered the information provided in AFACT’s copyright infringement notices as ‘compelling evidence’ rather than ‘mere allegations’.
In the final days of the civil case at the Federal Court of Australia, AFACT barrister, Tony Bannon SC, highlighted the manner in which AFACT investigators had tracked copyright infringements.
He said they had used the DtecNet service to download a portion of the file as well as recording: The IP address; the time at which the file was accessed and the date using universal time code; the protocol and the hash value — a string of characters used by BitTorrent clients to verify the data being transferred; the studio (Sony); and peer identification.
“We draw attention to fact that they were publicly saying it was a mere allegation where we now know that before proceedings commenced that they considered it compelling evidence,” he told the court.
iiNet chief executive officer, Michael Malone, whose cross examination was referred to several times by Bannon, sat in the gallery watching proceedings.
Bannon cited a paper from the University of Washington, which suggests “a more thorough approach to detecting infringement in BitTorrent would be to adopt the stated industry practice for monitoring the Gnutella network: in the case of suspected infringement, download data directly from the suspected user and verify its contents”.
“There is a massive number of repeat infringements, but there is also a very large number of single-instance infringements identified,” Bannon told the court.
He said iiNet’s use of its playpen policy, which limits internet access to customers who have not paid their accounts, was an example of the ISPs ability to issue infringement notices.
iiNet encouraged users to engage in copyright infringment in a number of ways, he told the court.
“In particular, iiNet is encouraging users by not limiting or suspending users identified as infringing copyright or otherwise deter them from that course.”
On Remembrance Day, the court adjourned just before 11am for a few minutes.
Bannon further alleged that the ISP's business plan is built on selling bandwidth to customers without holding the customer responsible.
“We think it is reasonable to do so,” he said. “The consequence is [they] are in a position to control the activity because [they] can control access to that service… that service is used… to engage in illegal activity.”
He said in light of iiNet’s successful integration with Westnet, it was a “nonsense” to say the ISP could not deal with the administration of infringement notices.
“You can’t improve your position by the fact that you’ve got lots of infringers,” he said. “They are taking the benefit of so many customers infringing as the reason they shouldn’t have to do anything; it’s counterintuitive.”
Bannon also remarked on the development of a code of conduct by the ISP industry.
“…there is no doubt there is a core of combativite ISPs, of which iiNet appears to be one of them,” he said.
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.
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.