Day 17: Film industry attacks iiNet witness selection

ISP iiNet's chief Michael Malone has witnessed first-hand an attempt by barristers representing the film industry to assassinate his character in the Federal Court, with the film industry's lead barrister labelling Malone's evidence as "incredible", "evasive" and unreliable.

The ISP's chief regulatory officer Steve Dalby did not fare much better in the film industry's closing submissions read to Justice Cowdroy in the copyright case this afternoon.

The film industry's lead barrister Tony Bannon attacked what he termed Malone's "extreme views" -that the Copyright Act should be modified or an industry code introduced before iiNet should be compelled to act on alleged infringement notifications.

Bannon claimed iiNet's approach in the case "was to deploy a variety and number of excuses" for not passing on the notices. The "excuses" included that passing on the notices would present a technical and cost burden for the ISP, he said.

He was also scathing of what he termed "persons not called", referring to the appearance of only Malone and Dalby as principle witnesses for cross-examination, rather than any of the ISP's technical or customer service resources to assist the court.

"The absence of witnesses who truly knew about the relevant topics put Mr Malone in the position in effect of having to provide evidence on subject matters on which he had no actual knowledge," Bannon claimed.

Nowhere was this more apparent than in iiNet's denials of knowledge of the inner-workings of the BitTorrent client or protocol, Bannon alleged.

"To put forward these two gentleman as the extent of familiarity of BitTorrent in the company is an entirely inaccurate picture of a company which plainly has a mass of technical expertise," Bannon submitted.

"It beggars belief that a company which paints itself as an internet pioneer doesn't have a level of knowledge within that company that knows exactly how the BitTorrent client works."

Bannon "respectfully" branded Malone's distinction that he understood the protocol rather than the client as "nonsense".

He said the issue of media releases in November last year as torrent files "added insult to injury.

"The company created its own torrent file and torrent tracker, which is accessible by someone who had a BitTorrent client," Bannon said.

"But you get the impression from these two witnesses BitTorrent was all a foreign area" with only "begrudging" admissions of what they knew, he said.

"It turns out the only people in this court room who can't engage in the most basic operation [of a BitTorrent client] are representatives of the ISP iiNet," Bannon said, raising his voice for emphasis.

"iiNet as a company perfectly understood the way BitTorrent works. That has been one of the great artifices iiNet has attempted to construct as a roadblock to a finding of authorisation in this case."

Bannon was equally scathing of Dalby's evidence, particularly that there was "not a single word [he] could give in evidence" to support Malone's assertion of the existence of a repeat infringer policy.

Malone was accused under cross-examination last week of having the policy only "in his head" - but he claimed that Dalby was also aware the policy existed.

"There was not a single word Mr Dalby could give in evidence to support the proposition that he ever had a single discussion with Mr Malone about a policy," Bannon submitted.

"[Malone] has no support from Mr Dalby on that issue.

"The silence on that front [in Dalby's evidence] is absolutely damning. The inference to be drawn is that no such policy exists."

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