Tit for tat in AFACT-iiNet final submissions

Tit for tat in AFACT-iiNet final submissions

Summary: Ahead of the final High Court hearing of the ground-breaking iiNet copyright infringement case, the Australian Federation Against Copyright Theft (AFACT) has again claimed that there is no evidence that it would cost iiNet to act on copyright infringement notices.

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Ahead of the final High Court hearing of the ground-breaking iiNet copyright infringement case, the Australian Federation Against Copyright Theft (AFACT) has again claimed that there is no evidence that it would cost iiNet to act on copyright infringement notices.

In 2008, AFACT took iiNet to court alleging it had authorised its customers' copyright infringements by not acting on notices provided to it by the alliance of film and television companies.

In what will be the final legal appeal by AFACT against the Federal Court's two rulings in the internet service provider's (ISP's) favour, the High Court will hear both sides of the argument on 1 and 2 December.

Following initial written submissions on the case in September and October from AFACT, iiNet and other parties, AFACT has again rejected suggestions by iiNet that implementing a system to act on copyright infringement notices would be costly and complex, calling it a "false issue".

"There was no evidence of iiNet actually incurring any costs, because it took no action," AFACT said in its response to iiNet's High Court submission.

AFACT has argued that iiNet brought up no evidence in the original trial proving that it would incur a cost associated with acting on the infringement notices delivered to the telco by AFACT. Instead, AFACT argued, the judge was left with CEO Michael Malone's speculation that iiNet would need to hire more staff, which did not stack up, given Westnet was able to send on infringement notices before iiNet took over the company.

"It cannot seriously be suggested that the then-third largest ISP in Australia (with approximately 925 employees, including approximately 600 customer service representatives) did not have the personnel even to consider any of the AFACT notices or contact any of the account holders in question."

Yet, an iiNet submission rejected this claim again, stating that the absence of evidence doesn't mean that it would be "sufficiently simple and cheap to make it reasonable" to act on infringement notices, and that costs had been discussed in the case before.

"iiNet's submissions at trial squarely raised the question of costs in the context of reasonable steps. To act on notifications of infringement, iiNet would have to implement and maintain substantial information systems at unknown costs and there has been no offer from the appellants to contribute," iiNet said, adding that the ISP was reimbursed for subscriber information requests from law enforcement agencies.

iiNet also said that a comparison to the Westnet system was disingenuous.

"Understanding what actually happened at Westnet puts the matter into perspective. A small percentage [of infringement notices were] forwarded. They were not AFACT notices. The process was not automated. It was being done by a network management centre. There was a lot of manual intervention," iiNet said.

AFACT also sought to dismiss personal data privacy issues brought up by the Australian Privacy Foundation in its submission, telling the High Court that privacy issues were not brought up in the original case.

"The submissions of the Australian Privacy Foundation go beyond the boundaries of the matter between the parties. They raise additional legal issues and appear to reflect a desire to have the law declared in particular terms," AFACT argued.

Ultimately, AFACT said that the alleged copyright infringement occurred through public communication, and internet protocol (IP) addresses were not protected by privacy law.

"The infringing activity in question, communication to the public, involved the public sharing of copyright files using IP addresses allocated by iiNet. There is no statutory recognition that an IP address is protected by privacy law. By its nature, an IP address is public and is controlled by an ISP."

The Australian Privacy Foundation, the Australian Digital Alliance and the Communications Alliance have all sought to intervene in the case in iiNet's support. The Australian Performing Rights Association; the Australian Record Industry Association; the Media, Entertainment and Arts Alliance; and the Screen Actors Guild have all sought to intervene in support of AFACT.

Topics: Telcos, Government AU

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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  • "The infringing activity in question, communication to the public, involved the public sharing of copyright files using IP addresses allocated by iiNet. There is no statutory recognition that an IP address is protected by privacy law. By its nature, an IP address is public and is controlled by an ISP."

    letterbox (house) number on my street isnt really mine its provided by my shire i guess, but i expect my house to be covered by privacy laws still.
    tordek
  • And it is precisely because of this ill-conceived lawsuit and its appeals by AFACT that I will never ever again buy a DVD or music CD. AFACT can get stuffed.
    StevenJC-b5f6a
  • Oh common AFACT. Sounds like you are really clutching at straws here.

    IF IP's were NOT PRIVATE, then how come a Subpoena is necessary in order to gain the details of the person using such IP address. Sheesh, sounds like you are making this up as you go. GOOOOOO IINET!!!!
    nakerjack
  • So if i asked AFACT's legal council to spend a few weeks of their own time posting letters for me because i asked nicely and i expect it to happen at no charge ie totaly free, do you really think they'd do it? Or would they tell me to get stuffed like iiNet is telling them. I wonder!! No service is entirely free, not even free services!
    nissy-2f939
  • I wonder if iiNet will ever address the fact that there is ALREADY a system in place that AFACT can use to get customer details from ISPs, BUT TO DATE have not even tried the current system before crying that the current system is broken?!?

    How the hell do AFACT have a leg to stand on?!? They should be told to try the already laid out method and at least then they have some reason to claim it doesn't work ... get a life AFACT!

    7
    Se7enE
  • Hollywood's big hang up is it wants to socialize the cost of policing Copywrite. Currently the onus of law of the cost of policing Copywrite is the Copy-writes owner. Now they are arguing that they should have ISP's give them all information for free? Hmmm, we are incessantly advised we live in a user pays world by them, but they feel they have the right not to have to pay for services? I hope the the ISP's charge them for the information with the same enthusiasm that Hollywood charges us for their dross. At least that way we see more of the money going around in the system in Oz than it just disappearing over the event horizon into the blackness of the voracious money pit USA/Hollywood.
    kdhgm
  • A random third party can't just ask a utility company (think power, gas, water etc) for the personal account details related to a specific street address or the street address related to a specific account number because this breaches privacy laws. So too, asking an ISP to relate an IP address to a specific account also breaches privacy laws.
    AFACT really do have a poor grasp of privacy.
    anonymous
  • Both arguments were spurious. Let's see what they have to say to the High Court.
    Tweed360Photos