AFACT allegations 'unsubstantiated' despite DTecNet probe: iiNet CEO

Matthew Lentini
Monday, 02 November 2009 16:15

Your IT - Home IT

When further pressed by Bannon as to whether or not iiNet was allowing customers to get away with copyright infringement, Malone defended iiNet’s action (and inaction) as its policy to find customers innocent of infringement until proven guilty by a court of law – a recurring theme throughout the case.

On the same token, Malone said that iiNet was in negotiations with AFACT to reach a common stance on copyright infringement during the period that notices were ceased to be sent, and that sending the notices to customers would damage the company’s image further due to this.

He allegedly likened AFACT’s film industry constituents in an email as “random” to the dismay of Bannon’s bench, stating that they would be like any average person from the “six billion” people on Earth making an unproven accusation against someone.

The defence of not sharing customer details with AFACT was linked with the Telecommunications Act today. When questioned by Bannon, Malone said that customer details are accessible by iiNet for billing purposes under the Act but IP addresses identified by AFACT as infringing copyright are not accessible to third parties without any court order.

According to Westnet’s Terms and Conditions and Acceptable Use Policy, customers may not transmit material breaching copyright and by doing so risk being disconnected from the iiNet service, the court has heard.

iiNet defended its claim to ‘safe harbour provisions’ under the Copyright Act, telling the court of instances of forwarding AFACT notices to customers and onto police as well as giving its customers an obligation to not infringe copyright as part of its obligation to defend against copyright infringement.

Under these safe harbour provisions, detailed in Part V, Division 2AA of the Copyright Act, iiNet would not be liable for damages as long as it implemented a policy of terminating the accounts of repeat infringers and does not accommodate the infractions.

AFACT has disputed its claim by denying that any policy is currently in place and being enforced by iiNet. AFACT raised the example of Sony’s film Pineapple Express that it alleged has been made available on an iiNet subscribing IP address from November of 2008 to August of 2009, a direct infringement of copyright, that iiNet did not act upon.

Other big names including animated series Family Guy and television sit com The Golden Girls were thrown into the courtroom debate.

In an ad on iiNet’s website, the company refers to a gigabyte as being the equivalent of multiple episodes of The Golden Girls. Barrister Tony Bannon questioned the motive of iiNet in presenting this idea when the television show was not available for Australian customers to download legally. Malone defended the use of the show as a means of showing the equivalency in a humorous way rather than condoning the illegal downloading of the show.

Hamish Fraser, partner at Truman Hoyle Lawyers, suggests AFACT is trying to suggest that iiNet should be likened to Kazaa in the recent P2P network case (Universal v Sharman) where the court found the company liable for authorising copyright infringement based on a number of factors, most notably its virtual encouragement of copyright infringement. In this case, iiNet is yet to be shown to have engaged in any such authorising of infringing activity.

The case is set to resume tomorrow in the Federal Court with Malone continuing to give evidence on the stand.