The Australian Federation Against Copyright Theft (AFACT) has claimed iiNet punishes spammers but not copyright infringers in the first day of the copyright case’s appeal hearing in the Full Federal Court.
AFACT barrister, David Catterns, argued that iiNet failed to take any steps to stop film piracy activities by its subscribers.
He referred again to the 1975 Moorehouse case concerning an educational institution which was taken to court for copyright infringement of books through students’ use of photocopiers.
According to Catterns, the Copyright Act was amended as a result of the Moorhouse case so the person or organisation providing the facility to infringe copyright would not be held accountable unless an act of authorisation is committed.
Reasonable steps included putting up relevant notices around photocopiers. The Act was recently amended to include computers as well.
Catterns also alleged iiNet had no solid code of practice to deal with repeated copyright infringers, and claimed the ISP had no real documentation of a code at the time of original trial.
“[iiNet] did not adopt and reasonably implement a policy; the policy was in Mr Malone’s head,” Catterns said.
The ISP has maintained it will take action against an alleged copyright infringing customer only if a court order is obtained or from an admission of the said customer.
Cattern further claimed, however, that iiNet takes internal prevention procedures leading to termination in other circumstances such as customers making threatening calls or sending spam email.
In relation to whether the ISP committed acts to authorise copyright infringement, AFACT argued iiNet countenanced, or tolerated, the piracy by its users and that counted as authorisation.
In the original trial presided over by Justice Cowdroy, “countenanced” was considered to be the same as direct approval. Cattern deemed this to be incorrect and has brought this up in to the Full Court.
Justice Cowdroy had previously found iiNet to be protected under the Safe Harbour Provisions which saves carriage service providers from being liable to under the law for the actions of their subscribers. While Safe Harbour was considered unnecessary in the previous trial, Cattern stressed to the Full Court that iiNet could not have been protected since it failed to take adequate action to prevent illegal activities on its network.