High Court day 2: iiNet says AFACT lawsuit inevitable

High Court day 2: iiNet says AFACT lawsuit inevitable

Summary: No matter what kind of warning notice scheme iiNet put in place to stop users breaching copyright, if it didn't include an account termination threat, it wouldn't have been enough to prevent the Australian Federation Against Copyright Theft (AFACT) from launching legal action, iiNet counsel Richard Cobden has told the High Court.

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No matter what kind of warning notice scheme iiNet put in place to stop users breaching copyright, if it didn't include an account termination threat, it wouldn't have been enough to prevent the Australian Federation Against Copyright Theft (AFACT) from launching legal action, iiNet counsel Richard Cobden has told the High Court.

On day two of the landmark High Court hearing that will ultimately decide whether iiNet authorised its customers' copyright infringement by not acting on notices provided by AFACT, the five judges heard from AFACT counsel Tony Bannon, iiNet counsel Richard Cobden and Communications Alliance counsel Patrick Flynn.

Cobden told the court yesterday that even if iiNet had a system in place for warning customers when the internet service provider (ISP) received an infringement notice from AFACT, the coalition of film organisations would have still deemed it not enough, laying out a hypothetical scenario where iiNet actually sent warning notices. Cobden said AFACT ultimately would have found a way to sue iiNet.

"OK, we should have sent a warning letter, that is a lawsuit number one, come back. We did send a warning letter. That was not good enough. It should have been tougher. That is suit number two. Next, the tougher warning letter went, did not threaten termination quickly enough. That is seven days or whatever it is. That is case number three," he said.

"We were never asked to issue warnings only. Even today when everyone says 'just issue a warning', only it always turns into a warning plus a termination. It was not reasonable for us to embark upon that graduated response given the way the information had been given to us and what we knew about the information."

Before any of this could happen, iiNet would have to have discovered what the AFACT notices even meant. Cobden said that AFACT executive director Neil Gane was dismissive of iiNet requests to explain what the notices meant.

"Given iiNet is presently the third largest ISP in Australia, it would have no shortage of technically qualified employees who should have no difficulty understanding the information provided to iiNet by AFACT," Gane was quoted as saying.

From there, iiNet would have to prove the reliability of the notices to customers that challenged the warnings, which Cobden told the High Court would require the disclosure of information contained in a confidential report created for the first trial in 2009 on how Dtecnet gathers its evidence.

Cobden said that this report was still confidential and had been heavily redacted for the High Court hearing.

"Confidentiality was maintained during the trial over the DtecNet report, it was released in bits over the course of the trial ... it is to this day still covered by confidentiality orders and parts of it have been redacted in your Honours' appeal book and the full DtecNet report was withdrawn from the appeal books only about three weeks ago on the basis that it is still too confidential to be put into the public arena."

The confidentiality of the report, Cobden said, would limit iiNet's ability to tell customers how reliable the evidence was, if such a warning scheme was in place.

Justice Susan Kiefel indicated this might limit iiNet's ability to terminate a customer connection, but not to warn that customer.

"If they denied the infringement and you could not take it further, that might make it reasonable for you not to terminate, but it might not have made it reasonable for you not to have sent the notice in the first place, given a prima facie case of infringement," she said.

Bannon had suggested that customers' accounts could be stopped or throttled until they stop sharing the infringing material online; however, Cobden said that it was difficult to know what any one customer was sharing online and implementing a graduated response system was not comparable to throttling the speed of a customer's account for going over their monthly download limit.

"[It is] nothing like the complication of extracting material from the AFACT notices and marrying it to the iiNet database and then saying, did that person respond within seven days, how do we know whether they have taken it down or not, wait for another AFACT notice, cross-check with that and then shake them."

iiNet also risked unhappy customers leaving for other ISPs without warning schemes in place, Cobden warned.

"If dissuaded by iiNet's response to these notices or terminated, can simply go to any other ISP including, for example, Telstra, which is not even investigated by the applicants or the subject of the Dtecnet process," he said.

iiNet's control revisited

The case centres around the 1975 Moorhouse vs. UNSW case that ruled that the university was authorising students' copyright infringement by providing photocopying facilities in the library with books. Cobden argued that iiNet does not provide the copyright works in this instance, and it does not have any control over the use of BitTorrent to obtain copyrighted material.

"We do not control, of course, whether people download the BitTorrent client. We do not control whether they use the BitTorrent client for legal or illegal purposes. We do not control what films they choose to rip onto their systems or email over their systems or send to people as an attachment. You cannot control any of that," he said, adding that there are legal constraints in place on ISPs monitoring user activities without a court order.

"It is not within the power of [iiNet] to deny iiNet users access to particular copyright material found on the internet short of denying access to the internet as a whole," he added.

This was a theme echoed by Communications Alliance counsel Patrick Flynn, who spoke at the close of day two of the hearing.

"The issue with the internet is that on one view the entire sum of human knowledge will, if Google have their way, eventually be on the internet and that means that if an internet service provider is held to have a relationship with a user in relation to a copyright work, there is no limit to the copyright works which could be involved."

Read the full transcript of day two here.

Topics: Piracy, Government AU, Security, Telcos

About

Armed with a degree in Computer Science and a Masters in Journalism, Josh keeps a close eye on the telecommunications industry, the National Broadband Network, and all the goings on in government IT.

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3 comments
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  • People People People, AFACT (AFUCT) are a front for the entertainment / movie / music industry who are terrified of losing distribution control (for a profit) via the current manipulated and profiteering system of Copyright. This is all about control of distribution, as BitTorrent / The Pirate Bay all bypass the agents who control these creations for a profit, to a system which is free. Contrary to the lies of AFUCT and other groups in this litigation, Copyright which has been valid for over 300 years since its creation, has never been about control of creations via Agents / organisations for profit.

    Copyright was designed to freely share at no cost all creations by the creators - free distribution without any controlling interests. Unfortunately due to corruption and threats the Government back then (around 300 years ago) allowed the Stationers of England to be controlling agents for all creative material and forced all creators to use this agent under the threat it would never be released otherwise - an old form of AFACT and other organisations. The Government back then agreed to let the Stationers be the controlling interests. Also the industry deliberately uses "loaded terms" like "piracy" instead of "copying". Despite their lies, this is not illegal as you are using copyright as original defined and intended. Copying is merely duplicating what already exists, where piracy is to take something tangible and transfer it to another party - two completely different versions.

    Learn how this system has been used for profit here: http://questioncopyright.org/promise. I have included a couple of Excerpt's below :-

    1. "To read the true history of copyright is to understand just how completely this reaction plays into the industry's hands. The record companies don't really care whether they win or lose these lawsuits. In the long run, they don't even expect to eliminate file sharing. What they're fighting for is much bigger. They're fighting to maintain a state of mind, an attitude toward creative work that says someone ought to own products of the mind, and control who can copy them. And by positioning the issue as a contest between the Beleaguered Artist, who supposedly needs copyright to pay the rent, and The Unthinking Masses, who would rather copy a song or a story off the Internet than pay a fair price, the industry has been astonishingly successful. They have managed to substitute the loaded terms "piracy" and "theft" for the more accurate "copying" — as if there were no difference between stealing your bicycle (now you have no bicycle) and copying your song (now we both have it). Most importantly, industry propaganda has made it a commonplace belief that copyright is how most creators earn a living — that without copyright, the engines of intellectual production would grind to a halt, and artists would have neither means nor motivation to produce new works."

    2. "Yet a close look at history shows that copyright has never been a major factor in allowing creativity to flourish. Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors."

    3. "None of this will happen, however, if the industry has its way. For three centuries, the publishing industry has been working very hard to obscure copyright's true origins, and to promote the myth that it was invented by writers and artists. Even today, they continue to campaign for ever stronger laws against sharing, for international treaties that compel all nations to conform to the copyright policies of the strictest, and most of all to make sure the public never asks exactly who this system is meant to help. The reward for these efforts can be seen in the public's reaction to the file-sharing lawsuits. While most people agree that this time the industry went too far, the error is mainly treated as one of degree — as if the record companies had a valid point, but had merely resorted to excessive force in making it."

    4. "Yet a close look at history shows that copyright has never been a major factor in allowing creativity to flourish. Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors.

    The arrival of the Internet, with its instantaneous, costless sharing, has made that business model obsolete — not just obsolete, but an obstacle to the very benefits copyright was alleged to bring society in the first place. Prohibiting people from freely sharing information serves no one's interests but the publishers'. Although the industry would like us to believe that prohibiting sharing is somehow related to enabling artists to make a living, their claim does not stand up to even mild scrutiny. For the vast majority of artists, copyright brings no economic benefits. True, there are a few stars — some quite talented — whose works are backed by the industry; these receive the lion's share of distribution investment, and generate a correspondingly greater profit, which is shared with the artist on better than usual terms because the artist's negotiating position is stronger. Not coincidentally, these stars are who the industry always holds up as examples of the benefits of copyright."

    SUMMARY: Copying a movie / music is not illegal as it is part of how copyright was originally designed - and for the benefit of the creators, not the distributors. This mob is trying to maintain the lies / state of mind and repeat the same old false information, in an attempt to keep their wallets full under the guise of "helping the creator". It all comes down to control and money, which they are terrified of losing due to free distribution on the web.
    Spongebob-fff50
  • I am curious, why didn't AFACT drag Bigpond to court ??Are they just trying destroy Iinet ? or were they scared of Bigpond and it's links to government..
    wolfrider56
  • Of course, what i said on day 1 may be a valid point, the other thing is. honestly, why pick on ISP's for this ?? I mean AFACT could, in theory, go to after ISP's themselves. Is AFACT \really that serious? then they should get the cort order themselves of the cistomer, and sue the customer, not the ISP's.
    tech198