AFACT vs iiNet. Another reality distortion field? [Updated]

David Heath
Monday, 02 August 2010 13:25

Opinion and Analysis

AFACT's appeal against their loss in the iiNet copyright infringement case commenced in the Federal Court today.  It would appear that they are presenting the same half-truths that were peddled in the original case.

The case has been widely reported throughout the IT media (here and here for instance).  Not being in Sydney, I won't be reporting the facts of the case, but having read these reports, it would appear that AFACT is continuing the same line of obfuscation that they peddled at the original hearing.

Of course the material presented at the appeal cannot differ from what was presented to the original judge, but there seems to be a slight twist.

This time AFACT's lawyer David Catterns is floating the argument that since SPAM can be blocked based on name and account matching by ISPs (iiNet in particular), copyright-infringing downloads should be blocked in exactly the same way.  He is also making the case that this does not breach the Telecommunications Act.

Let's put that in some context.

Something like 99% (my own guess) of SPAM is derived from sources outside of Australia and thus cannot be considered illegal under reasonable interpretation of Australian law.  Therefore any blocking by an ISP is done as a service to their subscribers.

So, observing that an ISP CAN perform a service in a specific area can make no judgement as to whether they MUST provide that service in every similar area.  Drawing such a connection is a particularly specious argument.

So, what is it about Justice Cowdroy's decision that annoys AFACT so much?  After-all, they're still at liberty to prosecute individual downloaders.