Legal counsel for the Australian Federation Against Copyright Theft (AFACT) has argued that the account holder should be held accountable for alleged copyright infringement, even if they weren’t the one to actually download infringing material.
Replying to iiNet’s defence on the fourth day of the case appeal, AFACT legal counsel, Christian Dimitriadis, told Justices Emmett, Nicholas and Jagot that the account holder consented to any and all users of their account for Internet use, and therefore should be held to account for any acts relating to that account.
AFACT represents 34 movie studios and copyright holders bringing the case against iiNet.
“It’s irrelevant in our submission that that person may not have been the person who engaged in the infringing act,” Dimitriadis told the court. “The fact that the user may be another person other than subscribe doesn’t change the fact that the information relates to the personal affairs of the subscriber.”
While the account holder would be the only one to have signed a customer relationship agreement with iiNet, Dimitriadis argued that other users of the Internet connection consented to the same terms.
"After all, the customer has expressly consented to his communications being monitored buy iiNet for the purposes of compliance with the customer relationship agreement," he said. "If the person is someone other than the subscriber, it can be reasonably inferred in the circumstances that by using the subscriber's services, that person has submitted themselves to the same [terms]."
As part of its investigations into copyright infringement, AFACT hired Denmark-based anti-piracy software group, DtecNet, to collate information relating to Australian users who allegedly infringed copyright by downloading copyright material and making it available for others on peer to peer protocol, BitTorrent. Spreadsheets containing this data were delivered to iiNet on CDs and DVDs on a weekly basis through 2007 and 2008, with suggestions from the copyright group to terminate those users.
The case between AFACT and iiNet has relied upon the notion that the latter authorised copyright infringement by knowing about those users and failing to terminate them, and by not having a policy in place to tackle repeat offenders.
However, in the final decision of the original case the primary judge, Justice Dennis Cowdroy, found that iiNet did in fact have a policy in place that was reasonably implemented, even if it didn’t have the consequences the copyright group desired.
iiNet’s legal counsel, Richard Cobden and Richard Lancaster, confirmed that iiNet’s policy was to terminate users only under issue of court order, court decision or an admission by the user itself to the service provider or authorities. The policy has continued to come into question, with fears termination of accounts could still fall foul of disclosure of customer information.
Cobden has also questioned the reliability of the DtecNet reports issued by AFACT to iiNet, arguing that they failed to provide suggestions of how the data was collated and how to use it. According to Cobden, the spreadsheets also failed to provide a peer ID, which would enable iiNet to discover which computer associated with an Internet account was actually being used to infringe copyright.
As Dimitriadis continued his reply to iiNet’s arguments, he countered claims that chief executive officer, Michael Malone, could claim a “reasonable belief” defence against acting on AFACT’s evidence, suggesting there was no evidence Malone had even considered the evidence until at least December 2008.
iiNet’s defence on that count was called into question earlier in the day, when Justice Emmett argued erroneous legal advice could not be considered as evidence against enacting on provisions in the Telecommunications Act.
Dimitriadis also argued that under the service provider’s billing and customer management services, it could potentially restrict the “supply of service” rather than simply terminate those alleged to infringe copyright, by throttling their bandwidth. It could also "playpen" users. However, he said these weren't suitable measures.
AFACT continues to argue the notion that iiNet has the ability to terminate those who allegedly infringe copyright based on existing provisions in its customer relationship agreements with subscribers.