Day 20: AFACT snoops “arguably” committed crimes in iiNet probe

ISP iiNet was justified in sending the film industry’s copyright notices to Western Australian Police because it was “strongly arguable” the notices were evidence of copyright crimes committed by investigators, the Federal Court heard today.

As the copyright case entered week five, iiNet’s lead barrister Richard Cobden told the court it was “very likely” that the Australian Federation Against Copyright Theft (AFACT) investigators had engaged in criminal activity in their investigation of alleged copyright infringement on iiNet’s network.

This activity occurred despite film studio bosses telling the court under cross-examination that they would not sanction investigative techniques that could be classified as unlawful or that infringed the studio’s copyrights.

“It was a constant theme of the cross-examination of [iiNet chief regulatory officer Steven] Dalby that, by reason of absence of commercial scale of the activities, [the AFACT notices] could not possibly be of interest to the police, that [the notices] could not be [evidence of] a crime,” Cobden said.

“The problem with that, and that [AFACT investigators] would face, is it is strongly arguable that [the investigator’s actions] were crimes.”

Cobden said that section 132AJ(1) of the Copyright Act, it could be argued, prescribed an indictable offence that may have been committed by AFACT investigators in collating evidence.

The suggestion appeared to draw a wry grin from the film industry’s lead barrister Tony Bannon.

iiNet’s belief that the notices were evidence of crimes being committed would mean the ISP was justified in forwarding the AFACT notices to police, Cobden argued.

However, he believed it was “arguable whether a crime had been committed or not” due to lingering questions over whether the studios had in fact ‘licensed’ investigators to download all or parts of the films and TV shows covered by the case.

Cobden argued the fact that because a number of titles were added to a Motion Picture Association of America SharePoint site under the classification “cleared for Australian litigation” prior to the start of AFACT's investigation, there had been a licensing of the investigator’s activities.

“‘Cleared for Australian litigation’ plainly carries the notion that the films were ready [for investigation],” Cobden alleged.

“It’s clear the studios knew what the investigation involved - downloading pieces and entire copies of the films.”

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