The Australian Federation Against Copyright Theft (AFACT) has tabled an outline of its submission to the Federal Court for its landmark case against iiNet. According to the document, specific evidence from a group of films, including Batman Begins and The Dark Knight, will be presented in the trial.
AFACT is suing iiNet for copyright infringement, claiming the Internet service provider (ISP) was willingly negligent in allowing users to pirate films through BitTorrent and peer-to-peer (P2P) networks. It is working on behalf of several different movie studios.
The summary of the AFACT’s 90-page outline of opening submissions (AFACT was unable to provide the full document), sighted by ARN, details that:
- The 34 applications (studios and television networks) are seeking relief against the respondent pursuant to the Copyright Act 1968;
- The plaintiff will be submitting specific evidence in relation to numerous high profile films including
- Batman Begins, its sequel The Dark Knight, Harry Potter and the Order of the Phoenix and Mamma Mia!, along with television shows such as The Simpsons, Heroes, Prison Break and Bones;
- Since July 2008, AFACT has served weekly notices of infringement providing details of specific acts of numerous and repeated violation of copyright with supporting information gathered through a monitoring process;
- Contravening copyright on the applicants’ films deprives them from generating revenue, which is exacerbated by varying release dates in different countries;
- The plaintiff will use previously successful copyright cases against P2P system provider, Shaman, and website operator, Cooper to justify its case.
AFACT also renewed its accusations of iiNet’s negligence. It claimed the ISP “rewarded” its users for continued patronage by ignoring their copyright infringements.
“iiNet’s own evidence shows that it has made a conscious decision in this regard, weighing in the balance the fact of infringement of the applications’ rights as against its own profits; it sided with the latter,” AFACT stated in the outline. “Through its inactivity and indifference, iiNet has in every relevant sense permitted a situation to develop and continue where users of its Internet services are free to engage in infringements of the applicants’ copyright.
"[iiNet] has also encouraged heavy users of its network to upgrade their services, thereby increasing profits. In other words, iiNet has allowed a widespread culture of infringement to become entrenched."
AFACT also claimed that the defendant had not honoured the terms and conditions of its customer relationship agreement (CRA) with its customers. The CRA stipulates customers must comply with the law and must not use the service for illicit activities.
iiNet has refused to comment, stating it was too close to the court date to divulge any information. The ISP has previously defended itself with claims AFACT was expecting them to do the impossible.
“They send us a list of IP addresses and say ‘this IP address was involved in a breach on this date’. We look at that say ‘Well what do you want us to do with this? We can't release the person’s details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else’,” iiNet CEO, Michael Malone, said. “So we say ‘You are alleging the person has broken the law; we’re passing it to the police. Let them deal with it’.
“[This traffic] is transiting our network along with the billions of other things passing across the network which are perfectly legal. We are not traffic cops. We can't stand in the middle of it and stop the individual items that might be against the law. These guys are asking us to be judge, jury and executioner.”
Both parties have been busy preparing their cases, enlisting the help of various expert witnesses.
Internet Industry Association (IIA) has also shown interest in entering the case as amicus curiae, a ‘friend of the court’, but has been met with opposition from AFACT.
The trial commences in the Federal Court on October 6.