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.

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