The Australian ISP community is holding its breath as the Australian Federation Against Copyright Theft (AFACT) and iiNet enter the Federal Court over a landmark copyright case that has transpired over the past year.
AFACT, on behalf of a host of movie studio heavyweights, has accused Australia’s third largest ISP of 'authorising' its users’ copyright breaches – through BitTorrent and peer-to-peer (P2P) networks – by turning a blind eye to these illicit activities.
iiNet claims it is not directly responsible for what individual customers do and investigating users would contravene the Telecommunications Act 1997, which prohibits the disclosure of customer information.
The case began at 10.15am on October 6 in the Federal Court of Australia, New South Wales Registry. It will run until mid-November with several days break in between including a two-week recess at the end of October. A verdict is not expected for several months.
If AFACT wins, a flood of claims could follow against other ISPs around the country. To the mark the beginning of proceedings, ARN has compiled a timeline of milestones in the iiNet vs AFACT court case.
November 2008 – AFACT - representing Roadshow Films Pty Ltd & Ors, various film studios and Channel 7- began legal action in the Federal Court against iiNet, claiming the ISP is complicit in the pirating of their copyrighted material. According to a statement of claim, iiNet “knows that there are a large number of customers who are engaging in continuing infringements of copyright by using BitTorrent [and P2P] file sharing technology”. iiNet vehemently denies these allegations.
November 2008 – The Internet industry rallies in support of iiNet with experts saying ISPs should not be forced to monitor network traffic for copyright material. It claims it is the responsibility of copyright enforcers, such as AFACT, to police infringements of intellectual property.
February 2009 – iiNet lodges its defence in the Federal Court ahead of a directions hearing. The ISP disputed the claim by highlighting its legal content download portal as proof the company respects the property of copyright owners.
“iiNet has, and always will, abide by the law. We forward allegations of illegal activity involving services connected to our network on to the relevant law enforcement agencies for their attention,” iiNet said in a statement.
May 2009 – AFACT kiboshes the part of its legal claim known as ‘conversion’, which suggests iiNet denied copyright holders their right over possession. The primary claim against the ISP’s failure to intervene in known copyright infringement of its network still stands and the Court orders the plaintiffs to reimburse iiNet’s legal costs pertaining to the withdrawn claim.
June 2009 – After objections from AFACT, the Court rejects iiNet’s attempt to access documents from overseas jurisdiction in relation to anti-piracy action against ISPs across the globe after in a directions hearing. According to an AFACT press statement, the Court deems that only documents pertinent to the plaintiff and defendant’s activities with ISPs in Australia, and iiNet’s subscribers’ information, are required.
August 2009 – iiNet puts forward further evidence and files numerous affidavits including one from an independent telco pundit in the US, Northrop Grumman senior scientist, Dr Michael Caloyannides. AFACT also calls on an expert witness, enlisting the aid of computer forensic specialist, Nigel Carlson.
September 2009 - The Internet Industry Association (IIA) seeks Court permission to become an amicus curiae, a ‘friend of the court’, in the legal proceedings. AFACT opposed IIA’s participation, claiming IIA was incapable of being a neutral independent advisor as the organisation counts iiNet as a member. The ISP hits back at the allegations, citing its involvement with many other industry organisations such as the Competitive Carriers Coalition (CCC) and rubbishes claims that IIA has been aiding the ISP in the case.
September 2009 – AFACT reveal details on its Outline of Submissions, with a swathe of high-profile movies, including Batman Begins and The Dark Knight, as part of the evidence. The document also claims iiNet encouraged copyright infringements by its customer base by “rewarding” heavy download users with increased download limits.
September 2009 – Six days before the Federal Court trial, AFACT drops another legal claim against iiNet pertaining to accusations that the ISP made copies of and stored pirated movies through caching data that is transmitted on its network. AFACT stressed that it was not a primary claim and the organisation is trying to pool more resources behind the main part of the case by shedding the peripheral components. iiNet begs to differ.
October 6, 2009 – Hearing for the case begins in the Federal Court.
October 7 – AFACT supplies iiNet internal emails to the court in a bid to demonstrate the ISP’s indifference to copyright infringements and its attempt to call in “a personal favour” from the WA Police. In response, iiNet dismissed the relevance of these emails to the case.
October 8 – AFACT lawyers flags nearly 95,000 instances of infringement on iiNet’s network. The ISP counters the claim by accusing AFACT of “artificially inflating” the numbers.
October 9 - AFACT executive director, Neil Gane, is called to the witness stand. After both AFACT and iiNet legal parties locked heads over what aspects of affidavits and other documents can or cannot be used due to confidentiality issues, the court is adjourned early.
October 14 – Contractual agreements between BitTorrent and a handful of movie studio applicants are revealed in Court. iiNet barrister, Richard Cobden highlights fact that, despite the deals struck between studios and BitTorrent business owners, the involved websites did nothing to discourage users from abusing BitTorrent to download copyright materials. AFACT retorts by claiming these contracts were terminated a year ago.
November 2-3 – iiNet CEO, Michael takes the stand and is subjected to intense questioning by AFACT. During the proceedings, Bannon brings up Westnet’s policy of automatically forwarding infringement notices to customers. Bannon then accuses Malone of submitting misleading affidavits by not mentioned the aforementioned policy. The iiNet CEO denies this accusation.
November 4 - News articles containing comments by Malone are submitted by AFACT to the court. One article dating back to 2006, Malone, had estimated half of iiNet traffic was BitTorrent and were mostly compressed versions of TV shows and Hollywood movies.
November 5 - AFACT barrister, Tony Bannon, quizzed Malone on his knowledge of methods to block certain websites on a network. The barrister made specific reference to the ACMA blacklist, a catalogue of websites containing illicit material – such as child pornography – used in the Internet clean-feed trial. Malone said there were ways to set-up roadblocks at entry or exit points to a network to prevent access to certain sites but said the company did not have the technical capabilities to enforce this.
November 6 - AFACT accused iiNet's chief regulatory officer, Steve Dalby, of issuing misleading evidence in a bid prove the ISP’s inaction to prevent film piracy.
November 11 - AFACT stepped up efforts to destroy the credibility of iiNet representatives in its closing statements.
November 13 – iiNet barrister, Richard Cobden SC, stressed Malone and iiNet did not set out to make cinema-grade downloading the core function of the business. This, according to Cobden, separated iiNet from the likes of Sharman, Kazaa’s developers, and Cooper, where the parties were guilty of setting out to exploit piracy opportunities.
November 19 – Cobden claimed attempts by AFACT investigators to incriminate iiNet of copyright infringement do not accurately reflect consumers and are therefore flawed.
November 26 - The Internet Industry Association (IIA) was refused participation in the legal dogfight between the Australian Federation Against Copyright Theft (AFACT) and iiNet by the Federal Court. Justice Cowdroy concluded the industry body would have little to add to the trial. Proceedings conclude.
February 4, 2010 - Presiding Judge, Justice Cowdroy, found “it is impossible to conclude iiNet has authorised copyright infringements” and ordered AFACT to pay iiNet’s legal cost.
AFACT launched an appeal and iiNet is also using the opportunity to appeal certain aspects of the ruling to clarify details relating to the Copyright Act 1968 and the Telecommunications Act 1997.
August 2-5, 2010 - Appeal hearing runs over four days.