iiNet v AFACT: Copyright case refresher course

iiNet v AFACT: Copyright case refresher course

It's all about to start up again

iiNet and the Australian Federation Against Copyright Theft (AFACT) are due to face-off in the Federal Court again next week.

AFACT failed in its initial bid to hold the Perth-based ISP responsible for the alleged film piracy occurring on its network when the Court ruled in favour of iiNet in February.

The anti-piracy group then appealed the decision. The appeals hearing will be held in front of the Full Federal Court on August 2.

So here's an iiNet v AFACT ‘in a nutshell’ for those that need to refresh their memories on the case.

Representing a host of Hollywood movie studios, AFACT, launched legal action against iiNet in November 2008, claiming the ISP authorised the copyright infringements through inaction to stop known offenders on its network.

Infringements were predominantly through using BitTorrent and other peer-to-peer (P2P) clients.

iiNet denies the accusations and lodged its defence in the Federal Court in February last year.

Both parties had several months to mull over the case before hearings kicked-off in October.

The crux of the AFACT’s argument is it had sent iiNet notification of infringement along with IP addresses of the offending iiNet subscribers. But the ISP did not act in terms by suspending or terminating those customers’ services.

iiNet maintained it would breach the customer privacy component of the Telecommunications Act 1997 if it were to identify the offending customers.

Highlights of the trial included AFACT lawyers claiming the group’s investigators found 95,000 instances of infringement on iiNet’s network. The ISP countered the accusations, claiming AFACT “artificially inflated” the numbers.

There was also the revelation BitTorrent websites and several of the studios represented by AFACT had formed deals to provide legal content although AFACT dismissed this, citing those partnerships ended in 2008.

iiNet chief regulatory officer, Steve Dalby’s credibility was questioned by AFACT lawyers. He had said he did not understand the initial letter sent by AFACT regarding copyright infringements by iiNet’s customer but admitted he did not request more information from the anti-piracy group after deciding not to take any action regardless.

Dalby was accused of being “completely and utterly misleading”.

After a swathe of evidence, numerous affidavits and a line-up of witnesses, the trial concluded in November 2009.

Three months later, 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 this opportunity to appeal certain aspects of the ruling to clarify details relating to the Copyright Act 1968 and the Telecommunications Act 1997.

For an in-depth timeline of the original trial, click here.

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Tags iiNetAustralian Federation Against Copyright Theft (AFACT)

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