These ISPs have allegedly followed a draft of the Internet Industry Association's (IIA) category A copyright infringement code that was never finalised. Category A infringements deal with the transmission of copyrighted content.
"There was no final version, from what I know, that was produced by the IIA," said Malone.
Due to this, Malone does not feel the policy applies to iiNet.
"But you come to this court on behalf of your company saying that this action [forwarding notices to customers] is unreasonable for your company," said AFACT barrister Tony Bannon to Malone.
Malone claims iiNet has a policy for dealing with repeat infringers of copyright on their service, though cross examination has revealed that this policy exists neither in published form nor in company minutes. This could potentially aid the case alleging that iiNet is not covered by the safe harbour provisions of the Copyright Act that would prevent it from having to pay damages for customer copyright infringement.
"Why is it a big secret? Why don't you publish it on the website?" asked Bannon.
"We haven't had a repeat infringer," replied Malone.
Almost incredulously, Bannon asked, "Is that a joke?"
Malone justified his answer by stating that to iiNet repeat offenders are those identified in court as such.
The hearing will continue tomorrow with Malone on the witness stand for the third day in a row.