News articles containing comments by iiNet CEO, Michael Malone, have been submitted by the Australian Federation Against Copyright Theft (AFACT) as evidence in court.
During Malone’s cross examination on day 13 of the trial, AFACT barrister, Tony Bannon, referred to an article by John Davidson published in The Financial Review on January 14, 2006.
The barrister isolated a quote from Malone regarding Internet traffic: "[Malone] estimates that half of the traffic on iiNet is consumed by BitTorrent for Internet users who want to quickly swap files and all those files would be compressed versions of TV shows and Hollywood movies."
While Malone did not recall the quote, he said it was likely the amount of traffic mentioned in the article was based on overall Internet usage and not from iiNet since the company did not measure BitTorrent bandwidth consumed.
Malone said he was certain that whatever he said to the journalist would not encourage people to illegally download content.
"I believe BitTorrent has many different applications," he said.
Bannon pressed on with the article, noting the quote would imply Malone is aware of unauthorised content being downloaded on its network and the volume of illegal transfers is very high.
Malone conceded a significant portion of traffic may be used to contravene copyright but did not agree it was "very high".
Referring to an affidavit from Malone, Bannon made the point that if the iiNet chief had any concerns over the accuracy of the article, he would have mentioned it in the document.
"You wouldn't dispute that you said to the journalist [a large volume of iiNet traffic exchange] would be compressed digital copies [through BitTorrent]?"
"I would be very surprised [that I did say it]," Malone replied.
Bannon queried whether Malone considered Davidson a leading journalist in this field. The ISP chief said he did.
Malone's response to this cross examination was then tendered to the Court by AFACT as evidence that Malone's failure to dispute the veracity of the article reflects the view that was quoted.
Another news article, written by Andrew Colley for The Australian, was also brought forth by the plaintiff. Dated February 21, 2006, it detailed how certain ISPs and their service providers were placing restrictions on P2P traffic.
Malone had made a press statement in relation to this action, insisting providers should be more concerned with Internet congestions rather than differentiating certain types of traffic that pass through a network.
According to the article: “Peer-to-peer use was targeted because it was likely to involve 'dodgy' activity, [Malone] said. "... From our point of view, if you tell a customer you're getting 2GB of downloads during the month, that's what we need to supply," [Malone] said.
"When you used the word 'dodgy activities', what you had in mind was copyright infringement activites?" Bannon asked.
Malone said it was likely but was unsure of how rampant this was now on BitTorrent since the statistics had changed since 2006.
AFACT referred to evidence used in week one of the trial - an email from iiNet credit manager, Leroy Parkinson, in which he stated iiNet "didn't have to do squat" on copyright infringement allegations from the industry body. Bannon asked whether this email reflected the company's position.
"That is a little bit colloquial, but, yes, you are correct," Malone said. He added that iiNet has no obligation to act on AFACT notices.
The case continues. For a detailed timeline of this trial, click here.