Lawyers for the Australian Federation Against Copyright Theft (AFACT) have said that iiNet authorised users' copyright infringements, because although it was in close communication with users and knew of their infringing activities, it did not act.
AFACT, representing film and TV studios, first took iiNet to court back in November 2008, arguing that the internet service provider (ISP) infringed copyright by failing to take reasonable steps — including enforcing its own terms and conditions — to prevent customers copying films and TV shows over its network. The judge ruled in favour of iiNet, saying that the ISP did not authorise its users' infringement of the studios' copyright.
AFACT decided to appeal and the case is being heard this week.
There was a "fundamental error" in Judge Cowdroy's original ruling in that he ruled that iiNet was not responsible for the infringements that occurred on its facilities, according to Catterns.
For 59 weeks, AFACT sent letters and DVDs to iiNet on a weekly basis containing information pertaining to identified copyright infringements carried out by the IP addresses of iiNet customers. Catterns said that iiNet had enough knowledge based on that information to act to prevent infringements. In the original trial, Malone argued — and Judge Cowdery agreed — that knowledge could only come from a court order, and to act otherwise would be "doing AFACT's job for them".
AFACT's legal team had received access to the records of 20 iiNet customer accounts in the original case. iiNet had previously argued that providing account information was in breach of the 1997 Telecommunications Act; however, AFACT specified it only wanted access to de-identified information that could link file-sharing activity to certain IP addresses. A confidentiality agreement had to be struck to ensure the protection of customers' identities.
In his opening argument, AFACT barrister David Catterns singled out one infringing user known as "RC-08", who he said had seeded 40 copyrighted works using BitTorrent between November 2008 and July 2009.
iiNet's contact with the customer, including communications to give them more download quota, was regular enough that the carrier could have acted to prevent further infringement, according to Catterns.
In that time, according to Catterns, iiNet had advised RC-08 when their account was shaped because the user had gone over their monthly download limit. After repeated instances of going over the quota, iiNet advised the customer to upgrade their plan to "get more of the stuff you love".
Catterns argued that iiNet users weren't simply "hooked into the wires and left to go off on their own".
The barrister argued that actions iiNet should have used included shaping, warnings, playpenning and suspending users who have been identified to have infringed copyright laws.
He pointed out that iiNet had a policy in place and had previously disconnected customers who were using its facilities to spam and said the same rule should have applied to customers infringing on copyright.
However, iiNet has always argued that it is simply providing a service to its customers, and has baulked at punishing them based on AFACT's notifications, instead forwarding the notices on to police. It has even argued that using customer information to act on the infringement notices as AFACT wished would be breaching the Privacy Act.