iiNet battles AFACT in court and by press release

Stuart Corner
Wednesday, 19 August 2009 14:00

IT Industry - Strategy

iiNet faced AFACT in court today in its long running battle with the movie industry, as embodied in AFACT, over its failure to act on illegal downloads of copyright material by its broadband customers. iiNet claims that The Australian Federation Against Copyright Theft (AFACT) -representing major movie studios - has demanded it act illegally, AFACT says this is nonsense.
iiNet claims that the provisions of the Telecommunications Act prohibit it from disclosing customer information without a court order and prohibit it from intercepting customer communications over its network without an interception order.

In a press release issued after today's court proceedings iiNet said: "AFACT has continued to refuse to advise iiNet what specific action they wanted taken against unproven allegations of copyright breaches. Surprisingly, today in the Federal Court, AFACT argued that it could not, and would not spell out the steps iiNet should have taken."
 
It added "there are very good public policy reasons why ISPs cannot use their customers' information in the manner AFACT has demanded...The existing law currently provides a process for investigating copyright theft or any other illegal activity using the Internet, requiring court orders, warrants and due process. If AFACT is serious about copyright infringement they can, and should use, this process."

AFACT hit back with a press release describing iiNet's position as "extreme" and with its barrister, Christian Dimitriadis, claiming that iiNet's defence had been introduced late in the case and were novel – that is had never been used in a case of this kind before.

AFACT refuted iiNet's claim that the Telecommunications Act precluded it taking any action against the alleged infringers saying "The prohibition does not apply to information gathered outside the telecommunications provider – such as information gathered on peer-to-peer networks (iTWire fails to understand how peer-to-peer is outside the telecommunications network since it uses exactly the same infrastructure as any other communication over the Internet)...The prohibitions do not apply to acts authorised by law – the acts would be authorised by the safe harbour provisions of the Copyright Act. The prohibitions do not apply to acts to which the customer has consented – by signing the terms and conditions that say that the customer must not engage in illegal activity, the customer has given consent."

"We find it surprising that iiNet would argue they are precluded from gathering customer information by the Telecommunications Act for the purposes of preventing piracy and yet claim protection under the safe-harbours which would require them to do the very acts they are claiming is illegal," AFACT director Adrianne Pecotic said. "We are of the view that preventing illegal acts from occurring on their networks is in the normal course of an ISP's business and therefore perfectly legal."

(However a provider of telephony services has little responsibility or power to prevent its service being used for illegal activity and can take no action to monitor or prevent that activity without a court order.)

iiNet has called as its expert witness Michael A Caloyannides. The studios had previously filed an affidavit by one of their expert witnesses computer forensic expert Nigel Carson who provided expert evidence in the music industry's action against KaZaA and has provided expert work on several other landmark digital rights cases.

iTWire requested an interview with Pecotic early today prior to AFACT issuing its press release but we received no response. iiNet recently held an off-the-record background briefing for journalists to put its position.