iiNet managing director Michael Malone today denied that cancelling
iiNet subsidiary Westnet's policy to forward copyright breach
notifications was designed to be obstructive to copyright holders.
iiNet chief Michael Malone(Credit: iiNet)
Day nine of the
Federal Court hearing in which iiNet stands accused of authorising
its customers breach of copyright in relation to 86 films owned by
34 applicants has today seen Malone take the witness stand for the first
AFACT's legal counsel Tony Bannon vigorously questioned Malone about the
different policies that iiNet and its subsidiary, Westnet, which
iiNet acquired in May last year, had in relation to forwarding
breach notifications from copyright owner lobby groups, Music
Industry Piracy Investigations (MIPI) and AFACT.
The court heard
Malone describe iiNet's policy of not forwarding copyright
breach notifications to customers as a little less proactive
than Westnet. Bannon raised email evidence from October 2008
showing that some Westnet executives believed that by forwarding
MIPI's notifications, it was assisting in the fight against
copyright infringement, and that it was reducing illegal content on
This policy was cancelled under Malone's instruction in November
2008. Malone defended the decision as one policy area of many that
he was making consistent across the two companies. He had also
previously said, according to an email included as evidence, that
it was bad for the industry.
Asked to clarify what he meant, Malone said that Westnet's policy
was not in line with the position the industry, under the auspices
of the Internet Industry Association, had been negotiating with
copyright owners at the time.
Bannon suggested to Malone that his
affidavit was written with the intent of giving the court the
impression that forwarding breach notifications was impractical or
Malone agreed that forwarding notifications, and the process of
disconnecting a client, would be a burden and would involve
considerable employee time devoted to the actions. "Nowhere in that
did you mention that [Westnet] had a policy of forwarding notices
to customers," said Bannon.
"That's correct," Malone replied.
"In fact that information, namely that Westnet had such a policy,
is not mentioned anywhere in your affidavit. Your object, in signing
this affidavit, was to convey the impression to court that it would
be impractical, or overly burdensome, to forward notifications to
customers," Bannon claimed.
The court also heard evidence that one of iiNet's customers in
the 20 accounts selected as evidence for the hearing was still a
customer. The customer, identified as RC8, had made the Sony film
Pineapple Express available.
Malone agreed that the customer was still able to access the
internet and that that was the only means by which they would be
able to continue breaching copyright. "You have certainly not taken
any steps to cut off that customer," said Bannon.