On day two of the appeal against the verdict in the landmark iiNet copyright trial, Australian Federation Against Copyright Theft (AFACT) barrister David Catterns said iiNet's "sophisticated" policy procedure for dealing with customers with malware and spam should apply to copyright breaches.
In his original ruling, Justice Cowdroy said that looking at the "power to prevent" section of the Copyright Act, there was "insufficient evidence" that iiNet could have used methods other than suspension or termination of user accounts found to have been infringing on copyright.
"We're unsure why he said that," Catterns said.
"Our friends [iiNet] did have the power to prevent infringements taking place. Prevention via attacking or stopping BitTorrent is not the only way to stop these infringements; a graded series of responses up to and including termination is in our friends' power."
Catterns said iiNet had a "very sophisticated system", and already had in place a "graded series of acts that [iiNet] could and should have adopted but [Justice Cowdroy] ruled it irrelevant in his honour's reasoning".
"We submit that his honour erred in his analysis of power to prevent. His reasoning about collective punishment is, with respect, not convincing."
Catterns argued that a policy in place for dealing with spam and malware, including calling customers to advise them to stop, flagging their account, shaping their download speeds and playpenning (limiting the sites the user could access) could have been applied to users AFACT had reported to iiNet for copyright infringement.
In the course of the trial, iiNet argued that under the Telecommunications Act, it would be a breach of user privacy to act on notices provided from AFACT and instead said the company would act if so ordered by a court.
Catterns said iiNet had a "dismissive attitude" to copyright compliance. He cited that emails sent to the address listed on the iiNet website to report copyright breaches resulted in bounce-backs, and said the internet service provider thought it would be "ironic" to put out a press release via BitTorrent stating the company would not disconnect users without a court order.