Tit for tat in AFACT-iiNet final submissions

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.