iiNet vs AFACT: Battle of the expert witnesses

Both plantiff and defendant have called on pundits to gain the upper hand

iiNet has put forward further evidence in its court battle with the Australian Federation Against Copyright Theft (AFACT) and has hired the help of an expert witness.

Representing a number of different movie studios, AFACT lodged a copyright infringement case against iiNet last November, claiming the company allowed its users to pirate films through BitTorrent and peer-to-peer (P2P) networks.

In a directions hearing at the Federal Court of Sydney, the Internet service provider (ISP) presented additional evidence to support its case and has filed numerous affidavits including one from an independent telco pundit from the US, Northrop Grumman senior scientist, Dr Michael Caloyannides.

"We have commissioned him to provide some expert testimony in the form of an affidavit and he will likely be called as a witness," iiNet chief regulatory officer, Steve Dalby, said.

Dr Caloyannides will elaborate on the technical aspects of the case and the defendant expects AFACT to do the same. iiNet has also submitted statements from the of the company’s senior executives regarding business processes.

AFACT has packed its expert witness arsenal as well, enlisting the aid of computer forensic specialist, Nigel Carlson.

During the hearing, AFACT re-enforced its defence in advising the defendant on what should have been done to prevent copyright infringements committed by iiNet’s subscriber base.

In a statement, AFACT director, Adrianne Pecotic said the organisation did suggest some reasonable steps that could have been taken and that it was not responsible for detailing a code or protocol for complying with the law to the ISP.

Dalby has maintained that AFACT has not told his company what it didn’t do that apparently authorised the ISP's customers to breach copyright.

"The assumption is AFACT wanted us to use the ‘three-strikes’ policy, that has been discussed in other countries, which requires ISPs to send notices to customers or to disconnect them," Dalby said.

iiNet has argued in court that enforcing this policy would contravene Section 276 of the Telcommunications Act, which prohibits service carriers from disclosing their customers private details. Maximum punishment for breaching the section is two years imprisonment.

AFACT has hit back with claims that iiNet’s defence did not stand since the Act does not apply because it concerns information gathered outside the service provider, such as from P2P. The organisation also pointed out that prohibition is not valid to acts authorised by the safe-harbour provisions of the Copyright Act.

The trial is set to commence October 6.

More about: ACT, iiNet, Northrop Grumman
References show all

Comments

Anonymous

1

Maybe AFACT might wanna go after the power companies for supplying the power to people s personal computers thus allowing them to download movies ect.. or then again go after the companies that build computers thus allowing people to download movies ect..

Jeff

2

Cost

Maybe its time the movie industry had a good hard look at itself and what it pays to the major actors - to pay someone millions of dollars to act in a movie is ridiculous. A few of the reasons that people download movies are, cost and availability. Make the movies readily available on the net (and when I say that I mean you can play them on more than your pc) at a reasonable cost and you will find a lot of the pirate activity will disappear. They should also release them at the same time everywhere around the world and get rid of this ridiculous zone setup. How much money can one person spend???

Anonymous

3

AFACT is dangerous

Just because they pay actors ridiculous amounts of money and charge more than people want to pay, they now want everyone else to act as policemen for them.

Next it will be them requesting Qantas to search luggage of people suspected of importing illegal DVDs, railway staff strip searching people AFACT says are transporting DVDs using the railway. Maybe AFACT will want the road traffic authority to put barriers on highways, pull over cars and emptying their contents onto the roadside.

More power to AFACT!!

Huey

4

it has gone on too long

i agree with Jeff's comment above. It has gone on too long. these movie stars are getting paid insane amounts of money and often produce the films as well giving them more and more money.

as far as i am concerned there is room for piracy if these movies stars are still getting paid all that money.

I haven't heard one complaint from an actor.

Anonymous

5

AFACT are dinosaurs. Music is geeting there (ie Itunes)

AFACT are walking dinosaurs trying to throw their weight around.

They need to be like the music industry and allow legal downloads at a reasonable price with reasonable conditions.

Go iinet! Take on the rapacious American bastards and sue them for your costs plus aggravation.

Hydrans

6

P2P Downloading is still theft

The last time I checked, it was still illegal to walk into JB Hifi, stick a load of DVDs in your bag, not pay for them and walk out of the shop.
Why is downloading from the Internet any different from this? It annoys me when middle class G20 people say that prices should be fairer, stop paying so much money to people blah blah blah. DVDs are $15 in the shops, is that too much, Tuesdays at the cinema is $8 to see a film, is that too much? Week Day rentals are normally $1 a day, is this too much?

Obviously what people want is free, however this would assume that people who make the $50M production are so cashed up that they do not need to see a return on their money. Well let me put it very clearly to you, very few people work for nothing, and those that do are already rich enough to be able to afford to do it (more power to these people). Downloading movies/music, puts people out of work, reduces the ability of people to make the entertainment that these THIEVES (that is what they are lets not kid ourselves on this, they are taking from the copyright owner with out paying for the goods with out the permission of the person to take it, that is the definition of theft) are desiring to steal.

So if AFACT want to find out who is downloading illegally, and want to implement a 3 strike policy (seems very reasonable to me, as mistakes very rarely happen and therefore mistaken people should not be immediately banned)and the potentially block internet access or prosecute them for consistent breaches, then why would people be up in arms about this? The only people that would care about it would be the people that are downloading illegally.

Are people more worried about protection criminals or the rightful owners of the item? Would you like someone to download your home movies from the internet, because they could?

Hellfire

7

Test Case

It is ridiculous to ask ISP's to police what people download. One must ask why go after iiNet when all ISP's provide the internet to consumers many of which download movies.I am sure it is just a test case so that if the win against a very small ISP then it creates a legal president to go after all the others. IT IS ABOUT MONEY NOT PRINCIPLE. Surely AFACT is abusing individuals personal privacy in monitoring what they download anyway. Perhaps they should be sued. I can not understand how providers of internet services are in any way responsible for the actions of their clients. It is the individual downloaders of copyrighted material that are responsible not the ISP.

Hydran's Stalker

8

I sit behind Hydrans

Stop wasting time on the net and do some work Hydrans.

You are posting your personal thoughts on a website during work hours, so someone is paying you to work while you stand on your soapbox regarding downloads.

You lose some of your moral highground buddy....

Samarillo

9

Hydrans - get with the times

Hydrans, what are you on about, are you still stuck in the 60s?

Times have changed and we now live in a new era that does not abide by the old distribution rules. Consumers no longer need to wait months for the slow boat to arrive in the dock to unload a movie reel or sit there listening to their static ridden wireless.

The new age is about digital distribution where we live in a world where Consumers have at their fingertips any content that they desire. Movie studios and production houses need to keep up with the way that Consumers consume content. They need to listen to their customers and satisfy their appetite for free content. Perhaps this will see the end to multimillion dollar blockbusters and a revival of the Indy scene, or, this may end up with movies saturated with product placement as the studios look for new revenue streams as the old distribution revenues dry up. Unless we cut ties with the old ways we will never move towards the new. It is time for the movie studios to innovate, or die.

jono

10

AFACT

Just a thought - illegal downloading is surely higher on the big ISP's purely due to their larger subscriber base. So why would AFACT take on one of the smaller players? Are the big boys in bed with AFACT??

sambo

11

No matter what they like to call themselves, it is NOT theft.

Hydrans, apart from needing to get back to work you are simply wrong in your assumptions.

Walking into JB hifi and stealing a DVD or CD is theft - of a limited resource.

Downloading a infinite copy of something that you would never have paid to see anyway is not theft. Its copyright infringement for sure but NOT theft.

Downloading is hurting the movie industry, I think not? The movie industry had record earnings year last year. The Dark Knight was the most downloaded film yet it still grossed over $1.3B US in box office earnings. Can't see alot of suffering here.

Nothing is being stolen. Give the consumer a reson to buy (IE stop making crap movies) & they will find a reason to pay.

steve

12

scare tactics??

first off, downloading a movie is not the same as walking into jb hifi and pinching a dvd. its like getting a copy off a mate that has already bought it. most copies of movies on the net are cams anyway so why dont afact crack down on the cinema's for letting people in with video cameras, surely they should be held responsible too. i agree that movies arent that expensive so why pay money for phone lines and such big internet connections when you would spend roughly the same paying honestly for them. they need to spend they're time and money chasing the original distributors not the downloaders or isps. what a waste of resources, they cant close down every isp or dissconnect every person that downloads illegal anything as theyre wouldnt be much of an internet left!!!!

juan

13

i dont get it

these guys are kicking up such a big stink in the wrong area. austar supply a box which you can "pirate" shows from there. why do video/dvd recorders exsist if it is all illegal. it is also illegal to broadcast any radio station at any public place(same as the disclaimer on all movies at the start) with out a $400 licence because they artists are not being paid for the broadcast go sue them!!!!, youtube can have part 1,2 and 3 of a show but because it is not the entire epp in 1 file it is ok????, is borring a dvd from a friend then giving it back the same as downloading one then deleting it???

Hydrans

14

Illegal Downloading

Sambo,

The thought that if an item is "infinite" in its avaliablity that taking it with out permission is not stealing is incredibly naive. There are still legal ownership rights to it, despite its avaliablity being so broad. These legal rights are what you are stealing not the physical item.

Just because you don't have to physical break into a building to steal the movie, does not make it any less of a theft. If you cannot see this, then I think that you ought to wake up to yourself and realise that just because you consider it fair game does not make it less illegal.

Bit like doing 10kph over the speed limit, we all do it, I certainly do, I know that it is wrong and if I am caught that there will be a penalty for doing it, however I still take the risk. This is what you are suggesting is legal.

I hope that you will enjoy the Dark Knight, I brought it this weekend, and the special features especially those regarding Heath Ledger are great. Pity that you will not see them as the torrent copy I suggest would not have them on it.

Ordinary Net Surfer

15

AFACT vs iiNet

I remember the days when the internet was fun.

That was before government got involved.

Now we have got AFACT, ACCC, etc. ad nauseum

It is sad to see them slowly stuff it all up at the expense of those who can least afford it.

Go iiNet!

Stick to the greedy multinational corporates.

Anonymous

16

Re: P2P Downloading is still theft

"The last time I checked, it was still illegal to walk into JB Hifi, stick a load of DVDs in your bag, not pay for them and walk out of the shop.
Why is downloading from the Internet any different from this?"

In the same way that taking a book from Angas and Robertson is different to going to the library, borrowing a book and copying it out before returning it. In one case the items are irretrievably gone, in the other, a copy has been made but the original is still in the hands of the owner. That's why it's copyright infringemnt, not theft.

"Obviously what people want is free"

No, if you check independent studies you will find that the most prolific downloaders are normally the most prolific buyers.

"Downloading movies/music, puts people out of work"

Please show me any independent (ie not commissioned by the record or movie industries) that shows the actual impact of this.

"THIEVES (that is what they are lets not kid ourselves on this, they are taking from the copyright owner with out paying for the goods with out the permission of the person to take it, that is the definition of theft)"

Please see point 1 above.

"So if AFACT want to find out who is downloading illegally, and want to implement a 3 strike policy (seems very reasonable to me, as mistakes very rarely happen and therefore mistaken people should not be immediately banned)"

Which is why the RIAA in the US sued three deceased people and a laser printer. Further, if there is an illegal action, then AFACT have access to the courts to prosecute/sue if they can produce hard evidence. After all, they can't possibly lose since, as you say, "mistakes very rarely happen".

"Would you like someone to download your home movies from the internet, because they could?"

Strangely enough, all my photographs are on the web under a Creative Commons licence. Feel free to do so.

Hydrans

17

Response

Point 1.

Let me get this right, it is OK to walk into KFC and steal the recipe for 11 secret herbs and spices, or Coca-Cola and the recipe for Coke, but as long as you leave the recipe on the computer, no one is hurt.

Copyright theft is still theft. Why try and mix words on it, murder/manslaughter someone is still dead.

Why would an independant organisation right a report on this subject, unless it was commissioned by either side of the debate, as the report has to be paid for by someone to write, everyone is biased on this topic.

How is the theft of someone's IP, different in principle from the theft of someone physcial possession, are we argueing on the nature of the theft, or the item that is being stolen. It is still taking with out permission, in my family that person is called a thief.

3 Laser Printers and a dead person, it is an IP address, if there were (from memory) 120,000 cases, and 4 were wrong, I think that anyone would take that as a few mistakes, so why mention it, unless it is to score cheap points.

I choose not to put my happy snaps up on the net under CCL, as personally I choose not to let people I don't know look at my daughter in a swimming costume doing State swimming. Not sure if you know this, but some people on the internet are not who they suggest that they are. However as the owner of your happy snaps if you are comfortable with this possiblity then that is your choice to make them avaliable, just do not steal mine.

Ghandi of IT

18

Painfull Stupidity

Hydrans, go back to whingepool.

"Would you like someone to download your home movies from the internet, because they could?"
- If you put something on the internet, /expect/ someone to download it. Want something private? DON'T SHARE IT. *sigh*

That point made me wonder what type of job you do... Maybe your stalker should let us know haha

The internet is a big series of tubes isn't it? These stupid old men have no idea what is actually going on. At least the prosecutors in the EU went for almost the right people (piratebay) as opposed to being retarded and getting the ISP. It is /exactly/ the same as police and drug crime. Hitting the lowly users isn't going to do anything, you have to hit the source. Thankfully, law enforcement is useless and the sources are intelligent on where they set up their bases of operation.

tl;dr - this is a waste of legal resources and always will be

Samarillo

19

Hydrans, what are you on about, are you still stuck in the 60s?

Times have changed and we now live in a new era that does not abide by the old distribution rules. Consumers no longer need to wait months for the slow boat to arrive in the dock to unload a movie reel or sit there listening to their static ridden wireless.

The new age is about digital distribution where we live in a world where Consumers have at their fingertips any content that they desire. Movie studios and production houses need to keep up with the way that Consumers consume content. They need to listen to their customers and satisfy their appetite for free content. Perhaps this will see the end to multimillion dollar blockbusters and a revival of the Indy scene, or, this may end up with movies saturated with product placement as the studios look for new revenue streams as the old distribution revenues dry up. Unless we cut ties with the old ways we will never move towards the new.

Anonymous

20

Its a matter of Convenience

It is easier and more convenient to DL movies and shows and watch them at home. I would pay a subscription to watch these shows legit if they priced the product correctly. If they don't need to print the disk, ship the disk, pay someone to stand there to sell the disk, pay the rent of the shop to rent the disk, why should it cost so much to watch a movie on demand? Cost the product at a reasonable price point and make it fast and easy to DL and watch and you would eliminate a lot of illegal downloading. The technology exists to stream high quality movies into our homes at times that reflect our busy lives and until they make a viable delivery system that reflects that reality they will not stem the flow.

Also if they cut off the head of the p2p monster it will grow many more (encrypted maybe) and they will not be able to enforce squat.

I would pay for a well priced, convenient product....

studio_dinosaurs_have_to_change

21

Who are AFACT people?

I always wondered who those people are (RIAA, ARIA, AFACT, etc). I suspect those are 'hired (by studios) goons' that do it (sue people) for money. Not because of moral believes or love for order. Current copyright laws will change, they are 20th century write ups not applicable to digital age. However, would be good to know who were those people who sold their souls for nickel to hinder human progress. They remind me of Nazi collaborators (French, Czechs, Polish, etc citizens) who joined local police to help uphold 'order'. Website with their names and roles they played would be handy for 'after war' so they are not able to hide their stand on this important to human race milestone (if one studies the problem in depth he/she may realize it's not about teenagers downloading artistic creations of Britney or visuals of armageddon caused by Arnold).

Hydrans

22

Whingepool?

There is an intelligent comment in the last post, that copyright law will change, it is almost inevitable. I will support this change fully, however until it does, downloading from the internet of copyrighted material is still illegal.

I look forward to change, I welcome it, however the people that make, market and produce the things that are downloadable, ought to be renumerated for your choice to download their work, surely on this you agree.

Not everyone is as blessed virally as Sandy Thom (Wish I was a punkrocker) or as already globally recognised as Radiohead (the pay as much as you like for the music album). For with out the hated record companies, or the overcharging film studios, these people and the work of people like this would never be found for the greater masses to appreciate.

If as the adverts for Australian Idol yesterday are correct, to market a "known" person with an existing customer base is $500,000 minimum investment, people simply do not get to see/hear anything new.

This is precisely what downloading is stealing from, the new investment money in talent.

This is a pet hate topic of mine, and there are obviously 2 vastly distant sides to this arguement, and until the copyright laws change to suit the downloaders, the downloading of copyrightable material is a criminal act and should be considered as such.

Jack Tar

23

new investment

So, by that reasoning, are you stating your stance to be more along the lines of "Don't download music from new acts and emergining groups, but for old school players who have more than enough money it's still copyright breaking but...meh." ?

Granted the companies and the like rquire a return on their investment. More power to them for that.
( arguments about which comapnies help produce and nurture great new music while others just peddle the usual populist pap can come around for another time )
But once a substancial return has been made it's hard to feel for those companies when they keep the prices high and lose some sales in exchange

Anonymous

24

Hmmmm I don't like them much either.

I have found the internet to be an incredible resource of tools, information and technology.

Being somewhat older, there are also many things that are out of publication, are not stocked or the companies have ceased to exist.

I have found that the human based computer networks - in essence are the archivists for much of humanities records and achievements.

When I have approached the record companies for copies of old albums etc., brought out by bands in 1976 etc., they have just ignored me.

One of the biggest issues I feel is the grossly excessive charging of fees in relation to much of the materials....

In Australia, "the pricks" are classifying hire movies like 3 years old as "New Release"..... and thus charging like $7 a night.... where as the weeklies are $3 a week or what ever...

The way the music industry is - is that they milk the artists - many of whom don't make any sales, by making them foot the bill for everything, AND so when that flops, they then blame the file sharers, and claim "They" are out of pocket... - then the artists who bought the bullshit and didn't make the sales - has to pay the HUGE bill.

IF ALL of the studios released ALL of their material - dating back to Edison - and charged 5 - 10c a track for it, I'd pay; but while they limit their releases and restrict their catalogs to only the latest and greatest - at grossly excessive prices - then I shall just have retreat from the mad scrambling to be in on the latest fad and decline their offerings, and my poor kids shall be laughed at for not getting their teeth rotted out from drinking coke and having the latest and bestest merchandise on the trend setter battles in the playground.

Then I guess me and my own shall just have to be non-compliant consumerist losers...

As "The Comedian" (in The Watchmen) said, "What happened? The American dream came true - that's what happened".

Les

25

Internet Connection disconnected without warning by iiNet

My website was disconnected without warning an hour ago, without notice.

20 min later, my ADSL2+ Internet Connection was also disconnected without notice by iiNet.

Just luck that I have a backup wireless connection.
Be Warned. If it happened to me, it can just as easily happen you.

Both happened after I had just paid $30 for another domain name, and $160 for a years web hosting which I never even got to use.

I first found out when the Username & Password I was sent by iiNet didn’t work. NICE!
Welcome to Communist China. I believe Nazi Germany started via censorship.

Be careful when obtaining a new Domain Name or Web Hosting.
Their quite happy to accept your money, but that’s no indication that you’ll ever get to use it, or even your existing internet connection. Ask Heaps of Questions First and get the Answers in Writing ! Their word is woth NOTHING.

Anonymous

26

Trade practice act

If AFACT run honey-pots to find IP addresses of people trying to download copyrighted content, are they in breach of the Trade Practice Act for advertising a product or service they have no intention of providing?
Also is this an illegal wire tap(it is on the phone line after all), and therefore any information found is inadmissible in court?
As AFACT also pass personal information(IP address and activity) to a third party(iiNet) are they in breach of the Privacy Act?

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