Exetel CEO John Linton said today that iiNet
brought the federal court action upon itself by not forwarding Australian Federation Against Copyright Theft (AFACT) complaints to
According to Linton in his blog, it was obvious from the first letter from AFACT that the federation was "following a strategy designed by
its legal advisers to take one or more smaller ISPs to court to
test the provisions of the current newer clauses in the copyright
At this, Exetel took action to shield itself, he said, sending
AFACT a letter that said Exetel was doing everything to make sure
it wasn't aiding copyright infringement. It also started
forwarding copyright infringement notices to the customer alleged
to have infringed copyright.
"An action such as the one now being taken against iiNet was
inevitable and it was going to be costly. What also should have
been clear to anyone with half a brain was that the 'head in the
sand' attitude adopted by iiNet, among others, just courted the
exact result that has now transpired," Linton said.
Telstra and Optus were out of the question for an action "due
to their track record and long experience of using the Australian
legal system to their continual advantage and their immense legal
budgets [being] already in place and fully funded", Linton
From the list that was left, iiNet made itself a target, he
continued. "iiNet has selected itself as the defendant in this
test case by not only ignoring the requirement to deal with AFACT
(in whatever sensible commercial manner it may have chosen to do
so) but its MD has run to the press alternating between
grandstanding and whining and making his company a very obvious
iiNet's general manager of regulatory affairs Steve Dalby
didn't believe it was true that iiNet had stuck up its hand for
the legal action, saying only that AFACT had worked down the list
until it had a company small enough to take on.
Dalby also said it was nonsensical sending notices to customers
when there was no direct link between an IP address and a person.
"When we get notification from AFACT all they do is provide an IP
address. It's not the equivalent of a phone number," he said.
"There's no pointer that this IP address is Steve Dalby."
"The whole exercise is flawed on the basis that AFACT says it
has identified offenders and we say it has not," he continued.
He said it was obvious that AFACT wanted a court case.
"There's no doubt it is looking for two things: A lot of
publicity and a precedent." He said that such action had not had
success anywhere in the world, which would make it a global
ZDNet.com.au contacted some of the ISPs to see if they
had also been receiving letters from AFACT. Internode, Adam
Internet, Soul Telecommunicatons have received such letters.
Soul and TPG's policy was to follow up with the customer issue
a warning. If the infringements were to continue, they could
disconnect the customer.
"I think all of the ISPs have been receiving letters for quite
some time," said Scott Hicks, CEO of Adam Internet. "There are a lot
of smaller companies out there that are incredibly worried."
He said that his company had told AFACT it needed to go to the
South Australian Electronic Crime Division to follow up on the
Netspace's MD Stuart Marburg said that his company had been
receiving notices, but was not sure if they had been from AFACT.
When the company received complaints, it tried to get in touch with
the customer, which he said took up a lot of time.
Internode did not provide information on what it did when it
received complaints, although MD Simon Hackett did comment on the
issue. "The industry remains of the view that ISPs aren't
policemen. The content industry should take legal action against
end users if it believes they have broken the law. ISPs are like
Australia Post: we [just] deliver it."
Telstra said it hadn't received messages from AFACT for months.
If the pirated content was on its network it would have it removed,
but otherwise, it required a court order to act, a spokesperson
"It would be a dangerous world indeed if ISPs were forced to
sit in judgement of their customers, particularly on a mere
allegation. Every ISP should enforce legislation of elected
parliaments enforced by courts but no individual ISP should sit as
judge, jury and executioner. It would be as foolish and unworkable
as holding the postman accountable for the content of letters he
delivers," the spokesperson said.
Amcom and Optus would not comment on whether they had been
receiving notices or not.
However, an Optus spokesperson said: "It is unfortunate that
the rights holders are targeting an ISP because under Australian
law, Internet Service Providers may generally be considered
"conduits" which provide carriage services, and as such are not
responsible for copyright infringements carried out by customers
using their internet services".