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.