Day Eleven: iiNet accused of "obstructive" copyright policy

iiNet chief Michael Malone has denied attempts by the film industry's counsel to label the ISP's attitude towards protecting the rights of copyright owners as "obstructive".

The line of questioning came as the film industry's senior counsel Tony Bannon cross-examined Malone over a series of emails between iiNet and Westnet uncovered during discovery.

One of the key trail of emails was allegedly sent between iiNet chief Michael Malone and Westnet's operations manager Alan Ariti and chief operating officer Eric Cain.

They related to Westnet's position of passing alleged infringement notices from the film studios on to customers.

One of the emails from Malone was alleged to have stated his preference that Westnet adopt a policy that was "a little less um... proactive."

"Less proactive would be better described as... obstructive, would it not?" Bannon asked today.

"No," Malone stated. "We're not standing in the way of you [the film studios] taking any action whatsoever."

Malone went further to state iiNet's policy was to refer allegations of copyright infringement to the police.

Malone was also called to task on an email that he allegedly wrote to Ariti that stated: "A random third party is lodging an unsubstantiated accusation against a customer and you're passing it on?"

"So Warner Bros and Paramount are random third parties in the view of Mr Malone," Bannon said today.

"Yes," Malone said.

"Parties you'd expect to know their own films by name and their copyrights?" Bannon pressed.

"Yes," Malone stated. "It's a party alleging they have been slighted and that their rights have been infringed.

"These notices were unsubstantiated," he said.

The information contained in notices originating out of the United States had also been collected using MediaSentry, a tool that "has been rife with errors for years", Malone alleged to the court.

Under cross-examination, Malone said he had read about MediaSentry in studies and court judgements, but had not been directly involved in a study of the effectiveness of the tool.

Malone also defended a statement in the email to Ariti that Westnet‘s approach to forwarding on infringement notices "was doing damage to the industry and iiNet's position on this matter."

He said that passing "unsubstantiated" notices to customers would be "brand damaging" to iiNet's business.

"Without proof or review by a third party, you're putting a customer in a position where they might not understand what it means [when a notice is forwarded on]," Malone alleged.

"How was it doing damage to the industry to forward on notices received from the movie studios of customers making available online unauthorised copies of films?" the film industry's barrister Tony Bannon quizzed.

"The industry was in negotiations with MIPI [Music Industry Piracy Investigations], ARIA [the Australian Record Industry Association] and AFACT [the Australian Federation Against Copyright Theft] to come up with a combined position for all parties," Malone alleged.

"So the damage was to the [ISP] industry's negotiating position?" Bannon alleged.

"I'd like to say that's unfair," Malone stated.

He went on to suggest that Westnet's policy went against the best practice method of dealing with infringement notices that the industry in which it operated was proposing.

The cross-examination of Malone continues.

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