AFACT: iiNet's Dalby was “completely and utterly misleading”

The Australian Federation Against Copyright Theft (AFACT) has accused iiNet's chief regulatory officer, Steve Dalby, of issuing misleading evidence in a bid prove the ISP’s inaction to prevent film piracy.

AFACT has claimed iiNet authorised copyright infringement over its network by refusing to stop or disconnect relevant customers.

On day 15 of the trial, the plaintiff's legal counsel questioned Dalby on his actions after receiving AFACT letters with CDs and DVDs dated July 16 2008. The discs contained spreadsheets listing IP addresses and information on recorded cases of infringement.

Dalby previously testified he was concerned over allegations of copyright infringement on iiNet's network but had difficulty comprehending the spreadsheet from AFACT. This account was noted in his affidavit.

On day 15, he admitted iiNet made no attempts to request information from AFACT to understand the spreadsheet in question. He had also discouraged a colleague, Leroy Parkinson, to explore the contents of the CD and DVD media provided. Parkinson was involved with the company’s draft responses to the plaintiff.

When asked by the barrister why that was the case, Dalby replied that from the time the ISP received the first AFACT letter, he had already formed the opinion that it was “impossible to comply”, regardless of the details. He added he did not want to waste company resources on the matter. “Our position was we shouldn’t be doing AFACT’s work,” Dalby said.

"You went through some trouble to say to the Court in your affidavit that there were matters which you didn't understand from the first letter," AFACT barrister, Tony Bannon, responded. He then accused Dalby of providing “complete and utterly misleading” information by omitting the fact iiNet had already decided not to take action on AFACT notices. Understanding the spreadsheet was therefore “irrelevant”, Bannon said.

"It would help me understand AFACT's position," Dalby replied. "It was an intellectual curiosity more than anything else. I wouldn't say it was irrelevant."

The AFACT barrister moved on to an email from Dalby to AFACT, expressing difficulties matching IP addresses to particular customer accounts. "[AFACT] assumes that it is a straightforward process [to match the IP] but it is in many cases not the case since we use dynamic IP allocation,” Dalby stated during the pair’s email exchange.

In court, Dalby acknowledged he did not have a definitive concept on how iiNet could match IP addresses but was aware it was technically possible. Bannon pointed out iiNet did have a tool that simplified such a process by using IP addresses logged on its network. Dalby countered that the difficulty he referred to was the fact he did not know how long those IP addresses remained in the system.

Dalby also maintained it would be impossible to isolate an individual copyright infringer since an IP address does not necessarily denote one person. Compromised wireless networks, for example, could also have been used to commit an offence.

Representing a number of movie studio applicants, AFACT has taken iiNet to Court over copyright issues. The plaintiff has accused the ISP of “authorising” its subscribers to break the law by turning a blind eye to copyright infringement activities through BitTorrent, a peer-to-peer (P2P) file transfer client.

The case continues. For a detailed timeline of the trial, click here.

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