The Australian Federation Against Copyright Theft (AFACT) wanted to establish iiNet had knowledge of and communicated with infringing customers on its network
AFACT barrister, David Catterns, has pointed to iiNet chief, Michael Malone’s testimony in the original hearing, during early comments in the copyright case’s appeal hearing in the Full Federal Court.
Malone had admitted in court the information, including IP addresses and times of alleged copyright infringements by customer accounts, given to iiNet by AFACT was “compelling evidence”.
Catterns said admitting the information was compelling evidence was tantamount to admitting iiNet had knowledge of the piracy happening on its network.
He also highlighted the regular communication iiNet had with customers. This included billing enquiries and contacting high usage subscribers with offers to bump up download limits after they had eaten their monthly download quota by illegally downloading copyright content.
In particular, Catterna referred to an iiNet customer, referenced as ‘RC0’ in Court, which AFACT alleged was a frequent illegal downloader.
“Clearly [iiNet] knew the various date, time and person [infringing copyright] but would not act on clear infringements,” Catterns said. “[iiNet] had knowledge but did nothing. It had complete power to prevent in a technological and contractual sense... short of cutting [customers] off.”
He brought up various techniques including suspending accounts, slowing down customer connection speeds after a download quota is exceeded and ‘playpenning’, that is to restrict access to certain websites once download limit is exceeded, as alternatives to terminating customer accounts.
AFACT maintains iiNet failed to enforce any measures to prevent copyright infringements on its network.
The Presiding Judge on the original case, Justice Cowdroy, recognised iiNet had knowledge and power to prevent but disregarded these facts since he concluded iiNet did not authorise the illegal download of content.
The primary technology used in committing film piracy, BitTorrent, was found to be the means of infringement and not iiNet’s network, according to Justice Cowdroy.
AFACT represents a number of high profile movie studios in the case.