AFACT: Our evidence not 100% reliable

AFACT: Our evidence not 100% reliable

Summary: The Australian Federation Against Copyright Theft's (AFACT) solicitor, Gilbert & Tobin's Michael Williams, has conceded that the techniques AFACT used to count iiNet customers' copyright breaches was not 100 per cent "reliable".


update The Australian Federation Against Copyright Theft's (AFACT) solicitor, Gilbert & Tobin's Michael Williams, has conceded that the techniques AFACT used to count iiNet customers' copyright breaches were not 100 per cent "reliable".

Today, his second day on the witness stand at a Sydney Federal Court and eighth day of the trial, Williams defended the techniques AFACT had used to count the number of copyright breaches that one of the 20 iiNet customer accounts had allegedly committed.

The case now centres on these 20 iiNet customer accounts since AFACT dropped its claim that iiNet had committed primary copyright infringement after the federation's investigators found the ISP had not cached copyrighted material on its own servers. AFACT's evidence is attempting to show the number of times films and movies by the 34 applicants such as Village Roadshow were made available by iiNet's customers.

iiNet's legal counsel, Richard Lancaster, grilled Williams about the account holder, identified as RC10, arguing that AFACT had inflated the number of breaches on the account.

To count the number of infringements (likely to impact damages that iiNet may have to pay if it loses), AFACT correlated evidence it had collected from its outsourced vendor, DtecNet — which had applied a filter to iiNet IP addresses to monitor copyrighted material being uploaded primarily by BitTorrent — with a spreadsheet of data provided by iiNet on the 20 accounts. Williams argued that he had simply matched up his evidence with that provided by iiNet, suggesting that any error in his report would stem from information provided by the ISP.

Lancaster again attacked Williams' knowledge of how and when IP addresses were generated for each customer. Generally speaking, each time a device, such as a computer or router is turned off or disconnected from the internet, a new IP address is issued by the ISP.

One process AFACT used to verify instances of copyright breach by each iiNet account was what is known as "reverse Domain Name Server (DNS) lookup". DNS is akin to the internet's address book. Lancaster said this was not a reliable process because DNS records were often out of date. Williams agreed this particular process was "not 100 per cent reliable".

"The only way to ensure a user IP address is to go to non-public records which are records held by the ISP," Williams said. Part of Williams' affidavit was based on a spreadsheet that was handed to AFACT as

Yesterday the court heard that Williams had written to the Attorney-General's Department with a proposal to amend the Telecommunications Act so that a carrier could forward the identities of its customers to copyright owners.

Topics: Telcos, Government AU, Legal

Liam Tung

About Liam Tung

Liam Tung is an Australian business technology journalist living a few too many Swedish miles north of Stockholm for his liking. He gained a bachelors degree in economics and arts (cultural studies) at Sydney's Macquarie University, but hacked (without Norse or malicious code for that matter) his way into a career as an enterprise tech, security and telecommunications journalist with ZDNet Australia. These days Liam is a full time freelance technology journalist who writes for several publications.

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  • Privacy

    Surely the last paragrah i the most dangerous of everything said so far in this case?

    "Williams had written to the Attorney-General's Department with a proposal to amend the Telecommunications Act so that a carrier could forward the identities of its customers to copyright owners."

    Scary stuff indeed, in a so-called democracy.

    Massive Dynamic is on it way ...
  • Indeed..

    The thought that a publicly elected government could agree to take away our right to privacy and give it to a corporation by simply having them ask for it (via an allegation), is very scary.

    Just goes to show how far AFACT will go to protect the bottom line of its members, even if it means attacking our civil liberties.
  • I wonder if

    ...Hollywood will make a movie of this case, a la Erin Brockovich.
  • Rejected

    I believe the government rejected that proposal in the end (at least, that's the impression I got from the tweets from the courtroom). At least some people in our government have half a brain...
  • Time to skuttle AFACT

    It's time that the self-righteously named "A-FACT" was skuttled through legislative changes that would make the supplier of the downloaded material, not the downloaders or ISPs, culpable. Then AFACT can concentrate of tracing leaks that, let's be honest, often originate from its own members and leave other businesses and individuals alone. AFACTs actions are like the Australian Mint suing banks for depositing into bank accounts the coins that are found on the pavement by pedestrians.
  • sounds to me like afact are about to get the boot

    judging from the critical comment of "AFACT: our evidence not 100% reliable" the judge/magistrate should just throw the case out of court, if they can't prove it 100% then there technically shouldn't be a case to answer to. the same thing happens in criminal cases, if there is no evidence to backup the acusation or alleged evidence is patchy the likelihood is that it will be thrown out of the criminal court in criminal terms: the burden of proof relies solely on the prosecution or in lamens terms innocent until proven guilty and in this case it would appear as though the AFACT /prosecution can't prove very much at all as they did not have a warrant to collect physical computer systems and perform forensic data analysis on those systems.

    Sorry if that makes no sense and sounds like a ramble but its true no evidence usually = thrown out
  • Level of proof needed

    IANAL, but I think you will find this is a civil case. Proof beyond reasonable doubt is not needed. The case can be decided on the "balance of probabilities".

    That said, if people are going to have their internet connections cut off or business put out of business, one would hope that the copyright holders would have something that was "100% reliable" on which to base their accusations. The fundamental problem I have is that the technology can at best identify the account holder only, not the person committing the act. I can't think of any other legal arena where the notion of "I don't know who did it, so I'll punish you instead" applies.
  • Punish you instead

    Not sure if this applies to all states of OZ- but speeding fines are attributed to the owner of the vehicle unless evidence is provided otherwise.
    That does not say that the application is correct.
    It also does not apply to other couriers, for example AusPost who transport physical pirate movies across boarders [must be true, saw it on telly ;).
    How can the court system allow a criminal act, permitted through the use of a legally obtained service or item, to be attributed to the party suplying the service or item. Going back to the speeding fine, I blame the motor industry for building cars which can exceed posted speeds, and the Govt itself for not enforcing this through standards [which apply to other items, but not the regulation of speed!]
    Welcome to the land of compensation for all if this is allowed to pass.
  • What is the problem?

    I am not sure what the big problem is. If AFACT or their member organisations have an allegation of a criminal act, why cannot they ask the police to investigate?
    If somebody steals something of mine, it is what I would be required to do.
    Why should AFACT or its members be any different?
  • !

    There's a process in place for them to get the evidence gathered and prosecute, but that's not good enough, they want their own 'special' law.
  • Reverse lookup - so we can see them

    From the article "so that a carrier could forward the identities of its customers to copyright owners"

    If my life was going to be trashed, ala The American RIAA / MPAA way, then I really want to know who exactly is in these organisations.

    This would be very useful for a variety of reasons. Firstly, to sue them. Find THEIR ISP. Find THEIR IP address. Track THEM across the net. When they, their children or their spouse connect to a P2P then reverse what they did and bring the civil case lost against them.

    The problem with throwing stones in glass houses...
  • RE: Punish you instead

    I disagree with the aboves anology. Speeding fines are indeed sent to the registered owner however you do not have to provide "evidence" that you were not driving- the Police need to do that. A photo of a speeding car is not evidence that the registered owner is driving

    You do however need to detail who was driving and failing to do so is a seperate offence. So although you would technically get out of that traffic offence you would be charged with failing to provide information offence (can't remember the exact section but definately know it exists.
  • It's because..

    ..The police do nothing. Everyone knows it, including AFACT. Police have more important crims to fight, and so instead of going through the proper channels, AFACT want their own laws and be their own police (the copyright police).
  • Evidence

    If they have admitted themselves that their evidence isn't reliable, then the case should not proceed.

    Also, how can they expect ISP's to disconnect customers based on what they admit themselves isn't reliable evidence? Oh, we think this IP address might have done something, but can you just disconnect them anyway, you know, just in case?
  • Uninformed

    Most of the opinion here is not based on an understanding of the way copyright law works so most of the analogies (speeding fines etc.) are not valid. This is a civil case, not a criminal one so the police have no involvement. Copyright law has, many times over the last few decades, held people responsible for things done by others - its the concept of "authorisation". And, as for democracy, anyone is free to write to our Government representatives to ask them to change the law. It doesn't mean it's going to happen.
  • The problem is...

    The problem is that the so called 'evidence' would probably be too flakey to get a conviction. If it is a criminal matter, then 'beyond reasonable doubt' would apply. If all you could do is identify the account holder and then in a way that is not 100% reliable, how far could the case get?

    I suppose the thinking is that if you can't work within the law, get around it by getting someone else to do your dirty work.
  • Novel Solution

    Why don't we just implement Internet RFC2549 (available at which provides for IP over Avian Carriers (Birds). It would be one of the funniest court cases ever when someone (AFACT, RIAA) try to sue the local bird-life.
  • Two types of cases

    Yes, AFACT vs iiNet is a civil case. My understanding is that the Copyright Act leads to criminal charges with a different standard of proof. Some people here are getting confused, but if one is talking about a breach of the Copyright Act, the the parallel with speeding fines is relevant. After all, the police don't investigate civil matters, do they?

    As for "authorisation", that seems to be one of the issues in contention. The question is whether iiNet "authorised" the copying by virtue of being an ISP. Personally, I think it is a bit like claiming Telstra authorises terrorism because the terrorists make phone calls, but we'll see what the court has to say.
  • anonymity & privacy under attack

    I agree with Peter H, that the last paragraph here is where the real danger is. Regardless of whether iiNet win this time or not, if the large media corporations and their lobbyists succeed in eroding our privacy and anonymity this way, the Internet we know and love will be a distant memory.

    I just hope a lapdog like Williams doesn't actually have any clout with the Attorney-General's Department.

    Question: who is the greedier profiteer, the media corp trying to carve a new income stream from p2p file sharing or the slavering lawyers ready to sell their souls for a high-profile case win?
  • Absurd

    In such an event, I might 'allege' that the whole Internet has stolen my short story 'Clowns smell funny'. All ISPs will have to then give me everyone's names and addresses. I will, (of course) supply all my rigourously gathered evidence to facilitate the process.

    Infringer's addresses supplied by 3rd party spooks, summarised for your convenience:

    I'll then find Mr Williams on the list and sue him for fun and profit; AFACT style. Hooray!