AFACT: iiNet had clear ability to tackle pirates

Attempt to establish the ISP has extensive power to prevent users abusing its network for film piracy.

The Australian Federation Against Copyright Theft (AFACT) has ramped up efforts to prove iiNet had clear contractual and technical capabilities to tackle copyright infringers on its network.

On the second day of the copyright case’s appeal hearing in the Federal Court, AFACT barrister, David Catterns, spend most of the morning attempting to establish the ISP has extensive power to prevent users abusing its network for film piracy.

Catterns went through iiNet’s internal procedures in dealing with spammer customers who violate their terms of use, and how network operation centre staff (NOC) monitor and handle offending customers. This included identifying the account, contacting the customer, flag the offending account with further violations leading to suspension and termination.

This was used to counter iiNet chief Michael Malone’s testimony in the original hearing in which he claimed the Telecommunications Act 1997 prevented the company from identifying customers as it would be a breech of privacy.

“But we rely on the evidence on its face [and] customers knew iiNet had those rights,” Cattern said.

He submitted iiNet had power to prevent copyright infringement as it had contractual ability over customer accounts and the company had exercised similar power in relation to spammers.

Cattern also suggested the Safe Harbour Provisions consider termination of accounts in some instances as reasonable and iiNet had the technical capabilities to enforce gradual steps short of termination of services including shaping download speeds.

While the presiding judge on the original case, Justice Cowdroy, ruled that iiNet had no obligation to act on copyright infringement activities by its users and it would be unreasonable to expect the ISP to act, Catterns rejected this view.

“When the court looks at the clarity of AFACT notices and evidence [with lists of recorded IP addresses alleged film pirates], that is not a good answer,” he said.

The AFACT barrister also claimed forwarding notices of infringement to alleged offending broadband users is effective and there is “no evidence of the contrary”.

AFACT represents a swathe of big Hollywood movie studios in the copyright case.