AFACT and iiNet enter the courts

AFACT and iiNet enter the courts

The landmark legal brawl between iiNet and film studios represented by the Australian Federation Against Copyright Theft (AFACT) has commenced.

The landmark legal brawl between iiNet and film studios represented by the Australian Federation Against Copyright Theft (AFACT) has commenced. Thirty-four film studio and television network applicants united under the industry group are suing iiNet for copyright infringement, claiming the ISP was willingly negligent in allowing users to pirate films through BitTorrent software and peer-to-peer (P2P) networks.

The trial, which kicked off in the Federal Court of Australia on October 6, saw the plaintiffs, represented by AFACT, taking the first shot. The applicants’ barrister, Tony Bannon, told the Court of 94,942 instances where hired investigators – that had posed as iiNet customers – recorded the ISP’s users making unsolicited online copies of films and shows; content which belongs to his clients. The investigation was conduced over a 59-week period.

More ammunition was unleashed on day two, with Bannon tendering internal emails allegedly sent between iiNet personnel and Westnet staff as evidence to demonstrate the ISP’s indifference to copyright breaches. The latter company was acquired by iiNet last year. In email exchanges between the two companies, iiNet CEO, Michael Malone, allegedly reprimanded Westnet on its policy of forwarding AFACT infringement notices to relevant customers.

“Westnet’s position on the AFACT notices is the opposite of iiNet’s, and pretty much unique in the industry. I think you are making more work for no benefit by passing the notices on to customers,” Malone said in one email. “Why not stop doing this and just refer AFACT to the police?”

An iiNet spokesperson responded that none of the emails were relevant in the greater scheme of the case and, if anything, the documents proved iiNet maintained a consistent approach to allegations of copyright infringement.

On the third day of trial, iiNet barrister, Richard Cobden, revealed from discovery documents that a number of applicants were in contractual agreements with BitTorrent, which maintains the software client. The studios’ logos, including applicants, Warner Bros and Paramount Pictures, appear on BitTorrent’s website. This is also the case for the torrent hosting website, Mininova.

“They have engaged, at least from the logo on BitTorrent, in the promotion of BitTorrent, the vehicle for all infringement in this case,” Codben said. This argument has also been used to fight AFACT’s accusation that iiNet’s inaction in deterring subscribers from copyright infringements equates to condoning the illegal activity, since the studios and partners themselves also took no action.

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