Round one of the iiNet vs Australian Federation Against Copyright Theft (AFACT) court case is drawing to a close as the Perth-based ISP attempts to discredit AFACT’s evidence of infringement on iiNet’s network.
AFACT is suing iiNet over alleged contravention of copyright through BitTorrent and peer-to-peer (P2P) clients on the ISP’s network. The industry body is representing 34 film studios and the Seven Network.
During the first days of proceedings in the Federal Court of Australia, iiNet pointed out several film studios involved in the trial had maintained contractual agreements with BitTorrent organisations. The ISP used these to counter accusations it was guilty of "authorising" copyright infringements by customers through inaction. On October 14, film studio representatives were questioned through video links to clarify those partnerships no longer existed. Paramount also expressed frustration about the unauthorised use of its logo on BitTorrent and said it had already complained about the matter.
AFACT’s research into illegal activity across the iiNet network was also called into question. AFACT has presented evidence from two of its investigators who downloaded movies “illegally” from iiNet users to demonstrate the ISP made such content publicly available.
During questioning of AFACT witnesses, iiNet claimed the material downloaded wasn’t illegal content and criticised the group for failing to submit third-party evidence of criminal activity. Earlier in the week, AFACT Chief, Neil Gane, stated copyright infringements were pardoned by the organisation in the context of investigation since it was an “investigative technique”.
“What has become clear in our mind is that because investigators were working for AFACT, and AFACT has a relationship with the movie studios in the US, they actually had authority to download those movies,” an iiNet spokesperson said. “The two investigators were acting on behalf of movie studios and they [have said they] would never allow anyone to do anything illegal.
“AFACT has never presented evidence of independent third parties downloading illegally and the only evidence they have of infringements were by authorised investigators as part of their job. We would argue that there is no evidence at all of people downloading movies illegally in this case.” Warner Bros and Paramount also said they believed AFACT investigators had acted lawfully while conducting research.
Another key aspect of AFACT’s case is its evidence that there were 95,000 recorded instances of infringement on iiNet’s network. ISP’s senior counsel, Richard Lancaster, cross-examined AFACT solicitor, Michael Williams, on techniques used to tally copyright breaches. During AFACT’s investigation, IP addresses were logged each time an infringement occurred. But both sides recognised technical network glitches can cause users to dropout and reconnect, causing multiple IP addresses generated for one user.
The iiNet spokesperson said the past week’s proceedings were important in weighing up the accuracy of the evidence.
“If the judge finds further down the track that iiNet is guilty of the claims AFACT is making – which I don’t believe they will – because they are seeking damages, the number of offences does matter in terms of the final decision on what the damages will be,” the spokesperson told ARN. On day six of the trial, the Court also heard the head plaintiff, Village Roadshow, sealed a deal with iiNet for distribution of legal material through the ISP’s lawful and unmetered content portal, freezone. The agreement was made by one of Village Roadshow’s subsidiary, Roadshow Entertainment.
The case will resume November 2. For a detailed timeline of what has happened so far, click here