At the close of the second day of the Australian Federation Against Copyright Theft's (AFACT) appeal against the iiNet copyright case verdict, iiNet barrister Richard Cobden argued that it was too burdensome for the internet service provider (ISP) to act on notifications it had received from the federation.
Cobden said that iiNet had kept all the infringement notices it had received from AFACT between November 2008 and July 2009. He said the number of automatically-generated "robot" notices was huge — "thousands a week" — and said that it was infeasible for iiNet to act on each and every one.
Earlier today, AFACT lawyer David Catterns told the court that iiNet could have applied graduated steps to prevent its customers breaching copyright, something it said iiNet already used to prevent customers from spamming or to encourage a customer to pay a bill.
Cobden argued, however, that a copyright infringement warning system would also have to include account termination — something iiNet will not impose on its customers without a court order.
Without the threat of disconnection as the final step, "the power to warn is not a useful or deterrent power at all", according to Cobden.
"[AFACT] have really always been talking about, when one cuts through what they have been saying, they can only be talking about the termination of a user account," he said.
Cobden stated that disputes between iiNet and the customer over issues such as billing were easily resolved as it was an internal issue.
"The customer service representative can go into the system to see the billing. That's a direct dispute between iiNet, the ISP, and the customer."
iiNet acting on allegations put to them by AFACT, he said, would not be as easy to resolve.
"It's a very easy thing for a rights holder to say [iiNet] can warn, suspend and terminate. [iiNet CEO Michael] Malone gave evidence that was not contradicted about the burden that would start even if it started with warnings," he said. "It automatically involves factors outside iiNet's business and outside its control."
Australasian Performing Right Association (APRA) and the Media, Entertainment and Arts Alliance (MEAA) also made their cases to be allowed to intervene in the court yesterday. Lawyers for APRA argued that their evidence was different to AFACT's and meaningful to the appeal because users visiting Pirate Bay to get film and TV torrents could also download music files, the copyright of which is owned by members of APRA and the MEAA. The court has yet to rule on whether this will be allowed.
The appeal continues today.