Day 20: iiNet can’t vet AFACT copyright allegations

Without breaching Telco Act or breaking the law.

ISP iiNet would have to break the law to verify allegations of copyright infringement raised in notices from the film industry, the Federal Court heard today.

Excluding its obligations under the Telecommunications Act - which iiNet argues prevents it from matching customer account records to allegations from the film industry anyway - iiNet’s lead barrister Richard Cobden told the court that “in order to even check what AFACT says is the case, one would infringe copyright.”

“If one wanted to check the DtecNet evidence and see on a range of IP addresses supplied by iiNet that infringing material was online, the only way to do it would be to use the BitTorrent client like DtecNet did, construct the parameters of the IP address range, locate the file and compare it to details in the spreadsheets,” Cobden alleged.

“To run a DtecNet system oneself to verify what DtecNet was doing, one would infringe copyright. It points out how unreasonable throwing notifications into the laps of ISPs is.”

Cobden’s argument built on this morning’s session where he argued that iiNet would not be able to respond in detail to an account holder’s request for more information on the nature of alleged infringements if it were to pass on notices from rights holders.

“There’s no way an ISP could answer any of the questions that could, quite conceivably, be possibly raised by an accused customer,” he continued this afternoon.

“It’s certainly open for an accused customer to come back and say explain it to me before you terminate me.”

Cobden alleged that the notices were not “self-explanatory”. He also argued that the Australian Federation Against Copyright Theft had at no point offered to answer questions from ISP customers that wanted to dispute the notices.

“There’s no suggestion that AFACT would ever take on answering those questions - they just say [to ISPs] ‘Do what you have to do and report back to us’,” Cobden alleged.

“AFACT has never set up a system to deal with these enquiries and there’s no suggestion they would do so.”

Qualifying ‘compelling evidence’
Cobden then turned his attention to iiNet chief Michael Malone’s alleged admission under cross-examination that he [Malone] regarded evidence collected by third party investigators DtecNet as “compelling.”

The ISP’s barrister said that it was a suggestion first raised by the film industry’s lead barrister Tony Bannon SC, not by Malone.

Cobden alleged there were “some 36 references to ‘compelling evidence’” in the film industry’s closing submissions. He then took Justice Cowdroy back over the court transcripts in an attempt to dispel “the importance the applicants place on compelling evidence.”

Cobden paraphrased Malone as saying the he thought the evidence was compelling but that it “ought to be tested.

“Mr Malone places sufficient weight or basis for needing to test the evidence,” Cobden stated.

He said that need to test had been Malone’s consistent position, even in a post to the broadband forum Whirlpool, which the film industry had allegedly based its original question on ‘compelling evidence’.

“His [Malone’s] description of compelling evidence was always qualified as meriting the attention of a third party,” Cobden stated.

IIA application
The case closed for the week with news that the Internet Industry Association’s application to enter proceedings as a ‘friend of the court’ would be heard on the afternoon of Tuesday 24 November.

The hearing was previously set down for 9.30am on Thursday 26 November.

It appeared certain that iiNet’s barristers would complete closing submissions by lunchtime on Tuesday 24 November “or [run] slightly into the afternoon” session. The IIA hearing would then follow.

The Wednesday sitting may then be abandoned in favour of wrapping up the case on Thursday 26 November.

The case was adjourned until Tuesday 24 November at 10.15am.

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