iiNet has attempted to rebuke claims by the Australian Federation Against Copyright Theft (AFACT) in the Full Federal Court that the ISP could have - and should have - taken gradual steps against copyright infringements by its customers.
AFACT represents a number of Hollywood movie studios, some of which are members of the group, in this copyright case. The Federal Court ruled in favour of iiNet in February after determining the ISP did not authorise copyright infringements by its customers through Bit Torrent.
On Day 3 of the case’s appeal hearing, iiNet barrister, Richard Cobden, took the Full Federal Court through a timeline of correspondence and meetings between iiNet, AFACT and related parties. In 2007, the Internet Industry Association (IIA) had engaged in discussions with copyright holders, the government and ISPs to negotiate a code of conduct in a bid to alleviate Bit Torrent content piracy.
Content holders had repeatedly proposed ISPs should suspend or terminate infringing accounts. Correspondence continued sporadically between 2007 and 2008.
In August 2007, AFACT executive director, Adrianne Pecotic, contacted IIA to say continued discussions with the organisation was futile and that AFACT would take action with its members.
iiNet, Internode, Optus and Exetel began receiving infringement notices from AFACT in March 2008. According to iiNet, later notices consisted of raw information listing IP addresses of allegedly infringing customers but no detail on how the details were gathered.
Cobden started to go through the investigation methods of DtecNet investigators employed by AFACT and claimed that their act of logging onto Bit Torrent and downloading films using limited iiNet addresses was not something the ISP would do itself. But he was interrupted by Justice Emmett who questioned the relevance of this background information.
Cobden said it was to demonstrate that despite AFACT‘s insistence iiNet should have taken gradual steps to prevent customers from pirating films, it had never asked the ISP to do so prior to court proceedings.
“It indicates the complete lack of specificity of demand by AFACT on what should be done,” he said.
Cobden also said for iiNet to investigate infringing customers by using methods employed by DtecNet was unreasonable since the ISP would be breeching copyright itself in the process.
“It is not a reasonable step for an ISP to take to be required to process, match, and develop a database and systems to respond to notices such as those issued by AFACT,” he said.
But Justice Emmett expressed concern over Cobden’s argument. He questioned Cobden on what would stop AFACT from issuing notices to iiNet again and initiating another legal proceedings all over again.
The iiNet barrister re-established his stand to fight AFACT’s claim the ISP could and should have taken what the group considers reasonable and gradual steps to fight film piracy on its network.
The hearing continues.