Day 18: Studios call for Federal Court to disregard iiNet evidence

 

Claims ISP took inadequate steps to combat infringement.

The film industry has accused ISP iiNet of making contradictory statements with regards to evidence of alleged copyright infringement found on its network by AFACT investigators - which could ultimately damage iiNet's credibility in the copyright case, the Federal Court heard this morning.

Continuing his closing statements, the film industry's lead barrister Tony Bannon claimed the ISP's "written, press release and affidavit word" had either asserted or included statements that suggested the ISP couldn't act on copyright infringement notices from the Australian Federation Against Copyright Theft because they were "mere allegations."

"But when asked the question in cross-examination, the truth is they regarded the notifications as compelling evidence," Bannon said.

"It's another dramatic example of the lack of credibility that can be attached to evidentiary statements by iiNet. To the extent that there are still shreds [of evidence] left to support any aspect of their case, Your Honour should disregard them."

It followed similar assertions made by Bannon in closing yesterday that iiNet chief Michael Malone's evidence was "evasive", "incredible" and unreliable.

Bannon also criticised iiNet today over the "reasonable steps" it claimed to have taken to address alleged infringement on its network.

He was particularly critical of iiNet's failure to apply capabilities used to get customers to pay overdue bills to instances of alleged infringement.

These capabilities included sending warning emails to overdue accounts, an ability to ‘playpen' the account so that account holder is able to access only a website where they can pay their bill, or the ability to terminate the account holder's access completely should the bill remain unpaid.

The film industry claimed these same capabilities - warnings, 'playpenning' and ultimately termination - could double as "reasonable steps" for acting on copyright infringement allegations.

"[But when it's about copyright infringement] that's when the shutters come down," Bannon claimed.

"That's when it all becomes too difficult."

Is the code a reasonable step?

Bannon claimed iiNet's participation in 2005 discussions with the Internet Industry Association to draft an ISP code to deal with allegations of copyright infringement also did not constitute a reasonable step in stopping or preventing infringing activities on its own network.

"Engaging in industry code discussions was not a rational or reasonable step because it wasn't addressing the day-to-day problem," Bannon claimed.

He also alleged the code that the "core of combative ISPs, of which iiNet appears to be one" was attempting to create with the IIA was one that would ultimately require ISPs to "do nothing" when it came to passing on the notices.

The code never made it out of draft form, the court heard in cross-examination last week.

And Bannon claimed that iiNet's freezone of legal content also did not constitute a reasonable step towards dealing with alleged copyright infringement on its network.

"At the end of the day the question is what are reasonable steps," Bannon put to the court.

"The application of reasonable steps is not by the creation of the freezone. [Its creation] cannot overcome iiNet's knowledge or refusal to act on their own terms [dealing with copyright infringement in the customer relationship agreement]."

He added: "If it's a clause they have no intention of enforcing, they're in the position, the clause may as well not exist at all."

Bannon claimed that proposition would mean iiNet users were free to use their internet service from iiNet "for any purpose. And that makes the argument for authorisation even stronger," he said.

The case continues. You can follow the case in-full here. For a background on the case, click here.


Day 18: Studios call for Federal Court to disregard iiNet evidence
 
 
 
Top Stories
Westpac interim CIO resigns
Group CIO yet to be appointed.
 
Five emerging technologies that will transform financial services
[Blog post] Far out ideas that aren't far off.
 
Earning the right to innovate
Breaking down the barriers to innovation is a long, but rewarding process, says Bank of Queensland Group CIO, Julie Bale.
 
 
Sign up to receive iTnews email bulletins
   FOLLOW US...
Latest articles on BIT Latest Articles from BIT
Pass on carbon tax savings, warns ACCC
Jul 24, 2014
The ACCC is warning businesses that supply "regulated goods" to pass on any cost savings ...
Have customers that won't pay debts?
Jul 10, 2014
The ACCC and ASIC have updated their advice when it comes to collecting debts.
Carpet cleaner faces court over online testimonials
Jul 4, 2014
The ACCC has initiated proceedings against A Whistle (1979) Pty Ltd, the franchisor of Electrodry...
You can now get 15GB of free online storage using Microsoft OneDrive
Jun 25, 2014
Cloud storage has reached both the capacity and price where it's a viable alternative to local ...
Another clever trick you can perform with Xero
Jun 25, 2014
Here is another way to reach out to particular subsets of your customers using Xero.
Latest Comments
Polls
What is delaying adoption of public cloud in your organisation?







   |   View results
Lock-in concerns
  27%
 
Application integration concerns
  3%
 
Security and compliance concerns
  28%
 
Unreliable network infrastructure
  9%
 
Data sovereignty concerns
  23%
 
Lack of stakeholder support
  3%
 
Protecting on-premise IT jobs
  4%
 
Difficulty transitioning CapEx budget into OpEx
  3%
TOTAL VOTES: 914

Vote