AFACT attacks Westnet piracy policy

iiNet managing director Michael Malone today denied that cancelling iiNet subsidiary Westnet's policy to forward copyright breach notifications was designed to be obstructive to copyright holders.

iiNet chief Michael Malone (Credit: iiNet)

Day nine of the Federal Court hearing in which iiNet stands accused of authorising its customers breach of copyright in relation to 86 films owned by 34 applicants has today seen Malone take the witness stand for the first time.

AFACT's legal counsel Tony Bannon vigorously questioned Malone about the different policies that iiNet and its subsidiary, Westnet, which iiNet acquired in May last year, had in relation to forwarding breach notifications from copyright owner lobby groups, Music Industry Piracy Investigations (MIPI) and AFACT.

The court heard Malone describe iiNet's policy of not forwarding copyright breach notifications to customers as a little less proactive than Westnet. Bannon raised email evidence from October 2008 showing that some Westnet executives believed that by forwarding MIPI's notifications, it was assisting in the fight against copyright infringement, and that it was reducing illegal content on its network.

This policy was cancelled under Malone's instruction in November 2008. Malone defended the decision as one policy area of many that he was making consistent across the two companies. He had also previously said, according to an email included as evidence, that it was bad for the industry.

Asked to clarify what he meant, Malone said that Westnet's policy was not in line with the position the industry, under the auspices of the Internet Industry Association, had been negotiating with copyright owners at the time.

Bannon suggested to Malone that his affidavit was written with the intent of giving the court the impression that forwarding breach notifications was impractical or overly burdensome.

Malone agreed that forwarding notifications, and the process of disconnecting a client, would be a burden and would involve considerable employee time devoted to the actions. "Nowhere in that did you mention that [Westnet] had a policy of forwarding notices to customers," said Bannon.

"That's correct," Malone replied.

"In fact that information, namely that Westnet had such a policy, is not mentioned anywhere in your affidavit. Your object, in signing this affidavit, was to convey the impression to court that it would be impractical, or overly burdensome, to forward notifications to customers," Bannon claimed.

The court also heard evidence that one of iiNet's customers in the 20 accounts selected as evidence for the hearing was still a customer. The customer, identified as RC8, had made the Sony film Pineapple Express available.

Malone agreed that the customer was still able to access the internet and that that was the only means by which they would be able to continue breaching copyright. "You have certainly not taken any steps to cut off that customer," said Bannon.

Malone said he had not. The hearing continues.