AFACT v iiNet: Barrister Tears Into iiNet Key Witnesses
Written by enigmax on November 10, 2009The case continues between anti-piracy group AFACT and Aussie ISP iiNet. As AFACT makes its closing submissions, their chief barrister Tony Bannon has torn into the evidence and credibility of iiNet’s key witnesses, CEO Michael Malone and chief regulatory officer Steve Dalby.
The trial continues in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (links to our earlier coverage can be found here)
The case continued in the Federal Court, with AFACT making its closing submissions and tearing into iiNet witnesses CEO Michael Malone and chief regulatory officer Steve Dalby.
The film industry, represented by chief barrister Tony Bannon, labeled Malone’s evidence as “incredible”, “evasive” and unreliable. Bannon said iiNet gave nothing but excuses for not acting on such notices and that Malone’s assertion that copyright laws should should be changed or an industry code introduced before he could act on infringement notices were “extreme”.
Since only Malone and Dalby appeared for cross-examination on behalf of iiNet, Bannon took the opportunity to criticize the company for not putting forward other staff from the company, who, Bannon claimed, would be better placed to answer the questions during the trial.
Bannon said this had put Malone and Dalby in the position of providing evidence on matters they knew nothing about, citing the pair’s lack of BitTorrent knowledge as a prime example.
“To put forward these two gentleman as the extent of familiarity of BitTorrent in the company is an entirely inaccurate picture of a company which plainly has a mass of technical expertise,” said Bannon, as reported by ITNews.
“It beggars belief that a company which paints itself as an Internet pioneer doesn’t have a level of knowledge within that company that knows exactly how the BitTorrent client works,” he added.
On an earlier claim where the iiNet CEO claimed to understand the BitTorrent protocol by not the operation of a torrent client, Bannon said it was a nonsense, to which insult to injury was added when it was revealed that iiNet operated its own BitTorrent tracker.
Bannon said it was clear to him that the only individuals in the court who claimed to know little to nothing about torrents were Malone and Dalby, but in reality the company understood the system perfectly well. Its motive for this stance, he said, was so that the company could distance itself from the accusations of authorizing the copyright infringements of their customers.
Bannon also heavily criticized Dalby’s evidence when he claimed to have the company’s policy on taking action only against repeat infringers “in his head”, insisting that no such policy exists.
iiNet is also asking the court to find its own terms and conditions both unenforceable and unreasonable, said Bannon as quoted by CW.
Although iiNet has asserted time and again in the case, that if a court ruled that someone had infringed copyright the ISP would disconnect them, the AFACT barrister said that iiNet’s own terms alone gave them the right to disconnect copyright infringers, and dismissed the ISP’s claims that the clause was unenforceable.
AFACT claims that iiNet engaged in secondary acts of infringement when it failed to stop its subscribers sharing illicit files on their network, citing the legal principles established in the 1975 case known as University of NSW v Moorhouse, details of which can be found here.
According to another report, the case could run over into a fifth week to 19th November and beyond to allow enough time for iiNet lawyers to prepare the company’s closing submissions.
The case continues.
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40 Responses (Add yours or TrackBack)
guys a full blown jackass
Looks like the only people who are ridiculizing themselves are AFACT. AFACT of nothing! They don’t seem to understand a heck of what iiNet is saying in the court.
iiNet customers are responsible for what they do. AFACT will have to seek for a trial for each one of them. They can’t ask iiNet to watch the connections of millions of customers for them. iiNet is not the police.
oh wow inet cares for its customers. It must know bittorrent 1000%. (sarcasM)
How bout defending ur tv be4 its too late? Don’t Let the MPAA Kill Your Set-Top Box
The MPAA’s action 2 control your cable set-top box is heating up again. Public Knowledge leading the good fight against the MPAA’s “selectable output control” scheming, & have an action alert up now. Protect interoperability, consumer choice,& innovation from MPAA,@ Public Knowledge &take action now! http://pie.im/1f42
Barrister can go to hell along with the other mafaa supporters.
COMPARISON:
So if I run a taxi company, I need to find out why everybody is using my taxi, the legal implications of what they are planning to do… And refuse to drive them if I think they have criminal intentions..
@5 yes
Also be sure to run a credit check on them & ask outside sources about them & also bring in the supervisor who hasn’t worked an honest day of his/her life & get em to check out the potential customer. If you are allowed by your credit to proceed but have a rocky credit (but good enough credit anyway), you will not be able to go forward.
Perhaps making the whole system so slow & inefficient as the airports since the new world order or castrated the 911 & all the bs since then.
I say no thanks, allow for free and open for all or fk off… Tak way me net & I will get me new net… Restrict me net & I will open me net. If me wanted censorship me would just disconnect my net & not use it on me own.
The cartel is pusies & needs to have someone fk em wit a brokn botl up der azz. Dey av fked 2ny ppl & dezrv 2 b fked bad.
And refuse to drive them if I think they have criminal intentions..
well.. yeh.
if some one uses a smith and western to shoot 15 kids in a high school…..are smith and western liable
ISP’s should not be forced to clean up the mess that the movie industry created. It is their own fault that they don’t provide a simple, inexpensive, no DRM and quality internatioanl download service to counter online film piracy. downloading of Films and TV shows ispopular in Australia due to many free to air and cable TV channels broadcasting many TV shows MONTHS after they have screened in the US and many films are availabe as dvdrips on bittorrent before they are released in Australian cinemas. Its the companies that AFACT represents that are responsible for piracy, their lack of innovation in the digital millenium will be their downfall and they will blame piracy for it.
Everything on the internet is basically copywrited. If these anti-piracy goons had there way there would be no internet. They should shutdown all librarys as they do the same thing. I can see where someone copys movies and sell them is infringement but sharing is not. These money hungry goons will never win.
Ok, so why has no one mentioned a VERY simple and common-sense analogy here?
What do you think would happen if someone robbed a store and drove away? By the entertainment industry’s logic, the store owner could then sue the city, state, federal gov’t, AND the local police force – hey the thieves used *their* roads to make their getaway. The city/state/gov’t should have KNOWN that that was happening and done something to prevent it. And the police were obviously not doing their “due diligence” by effectively patrolling those streets.
Makes sense, doesn’t it?
WHY can’t someone bring COMMON SENSE things like this up in the trials???!!!
@6
While I too find AFACTS arguments lacking, and agree with you that iiNet shouldn’t be held liable for their consumers etc. I have to say that your analogy is far from perfect.
iiNet doesn’t sell guns, if one was to compare an ISP to a weapons manufacturer, ISP’s would be selling ammunition on a flat rate.
Say someone who’s subscribed to a monthly ammunition service shoots 15 kids, should the company supplying the shooter be held liable? I don’t think so. But they might if they do not cancel their contract with the shooter –granted the shooter would have to be guilty and convicted. Well actually he wouldn’t, as long as their consumer is a murder suspect; I’d think it would be a pretty bad idea to send him any more ammo. Which is why your analogy doesn’t work (at all), piracy=/=murder.
Digital piracy isn’t even stealing.
I hope most of us can see that disconnecting a household from the internet, solely based on a hunch, isn’t proportional with the risk involved with waiting for an investigation.
@DeathStalker
Don’t forget the car manufacturer. If the robbers drove away in a Ford Taurus that makes Ford guilty of robbery, too, damnit!
Gotta love MAFIAA logic.
@8 It’s funny you mention this. Back when CD-RW drives were becoming popular (and unfortunately I had a dial-up connection) I resorted to going to the library to check out some music CDs then made my own copies.
I guess libraries should be held accountable here too.
Other people from the company? Yeah uh people have lives and jobs to do.. not play games in a kangaroo court..
Only those 2 where there because they are representatives.. its bad enough these criminals can waste there time in court as it is.
Theres nothing they really need to know about bittorrent, expecialy the client.. there trying to act like thats the real problem here.
The problem is that the industry is a bunch of lazy as hell thieves and want everybody to do there work for them.
@10
You said it. AFTER being guilty and convicted. That sentence alone supposes he had a fair and impartial trial.
As far as I can see, AFACT is desperate. They know iiNet has given enough information to win the case. However it is true that iiNet should have sent specialists in BT to speak. That would have turned AFACT fail in this case a massive one. lol.
So when MAFIAA don’t enforce laws that make it illegal to breach DRM, they are authorising breaking it?
Okay then.
Remember Kids the Internet is evil and as always if you download anything you will make Jesus cry.
So Bannon has completely ignored everything that Malone and Dalby actually SAID in giving their evidence up to this point!? It would appear so, as he keeps repeating the falsehoods they corrected him on at the time he was asking the questions – let’s just hope the court itself has a longer memory than he.
Nah. Jesus wouldn’t cry, He would just shake His head and say “what fools these mortals be”, then turn the cheek and go on doing what Almighty beings do.
Having read the transcripts that are available on this case and what reporting that has been done on this; it bears striking similarities to the TPB show trial. Guess I’ll have to see what the judge’s ruling on this is.
more bullshit for a dead and biased illegal industry charity. i mean come on when is this shit gonna stop.
Seriously the moving picture industry has been funded by ornisied crime and mobs for years.
Seems they have final had their comeuppance and getting their just deserves.
Face the truth your businesses is OVER get it. People trends move on. better distrubutions models have arision which don’t cost the earth.
The real treason all this bullshit is going has nothing to do with piracy. hell it never was thanks to failing price of digital technology ANYBODY can become a film producer. what’s more can distribute for little or no cost.
These fuckers aren’t fight piracy there just trying to restate their buissness.
The fact is bit-torrent may loose them a few viewers who might buy their films, but what it dose even better is end their monopoly of distribution.
Their just scared mothers and good ridans to them to.
I hope all their lies are exposed and brought to justice for them.
sharing is caring.
afct flact mpaa riaa ifpi bpi are nothing more then fat greedy bustards, king john’s, Robert Mugabe, Adolf Hitler.
sort these fucktards whiles you still have a chance.
Did reasoned-neo-beakz and friends all go get legitimate jobs or something? they have been absent for a long time
seems to me that AFACT are doing what every losing side does. shouting the lies even louder in the hope that the sound of the truth is drowned out completely! just hope that the judges ears are sensitive enough to still hear what iiNet is saying and that he has also heard of the defeats earlier of other ‘industry and copyright’ groups eg Antipiratgruppen v ‘pirates’ and IFPI v Telenor
AFACT will still win, the big companies always win
This is more like running a hotel, and then somebody claims that the people in a certain room have broken the law and need to be evicted immediately.
“AFACT will still win, the big companies always win”
Until they all get shoot.
“the AFACT barrister said that iiNet’s own terms alone gave them the right to disconnect copyright infringers, and dismissed the ISP’s claims that the clause was unenforceable”
If iiNet disconnected people on accusation alone, it would set a dangerous precedent.
If iiNet did this it would generate bad PR (for disconnecting without sufficient evidence) which in turn would cause undue losses for iiNet.
iiNet cannot be sure the owner of a connection is the infringer and to be fair, should allow customers to appeal disconnection threats.
iiNet has the right to disconnect users, yes… and Bannon has the right to stab himself in the throat with a rusty screwdriver… just because you have the right to do something doesn’t mean it is wise or necessary.
“Although iiNet has asserted time and again in the case, that if a court ruled that someone had infringed copyright the ISP would disconnect them”
If a court deems the evidence acceptable, then action is taken and that is completely reasonable.
AFACT just wish to skip this process and get results purely upon accusation.
F**k AFACT and f**k Bannon… these a-holes believe in guilty until proven innocent… and that in itself is not justice.
@9 And the M/P-IAA are a like incompetent private company sitting 100 miles away from the road, looking through a pair of binoculars (held backwards) at any car that they can see. If they see anything they think is strange they yell at the road, instead of going to the police with a provable chain of evidence.
“Bannon said this had put Malone and Dalby in the position of providing evidence on matters they knew nothing about, citing the pair’s lack of BitTorrent knowledge as a prime example.”
How is this now about Bit-torrent and the Bit-torrent protocol?
I torrent Linux and the like. It isn’t illegal.
Why should they need to know about Bit-torrent? Do they know about the inner workings of FTP and HTTP? All can be used for the same thing.
Looks like Bannon is grasping at straws.
@4 Cordelia
Actually no. Even though there are many valid reasons to use taxis, there are many cases where people use them to perform criminal acts and therefore all taxi-riding should be illegal, and car companies should be held responsible as well for building the taxis.
Guns should be illegal as they can be used for armed bank robberies.
Cars should be illegal as they can be used to murder people and distribute illict goods.
Clothes should be illegal because they aid shoplifters.
Money should be illegal because it is used to fund crimes.
We could carry on with this bulls**t forever.
@6 me
Quote: “if some one uses a smith and western to shoot 15 kids in a high school…..are smith and western liable”
Smith & Wesson actually. And yeah, the anti-gun activists are always trying to blame the manufacturers and gun shops for people using guns to commit crimes.
Do you know what happens when you point a finger at somebody? You have 3 fingers pointing right back at you.
Sounds like it’s about time the ISP’s pay a royalty everytime copyright music/movies are downloaded…Just like radio stations pay a small fee to the artist for songs being played..
Wow, bring in the bottom feeding, bllod sucking attorneys! LOL
Jess
Privacy-Stuff.be.tc
ISP’s should not be held accountable for what it’s users do just like guns or someone said taking a taxi cab…..
cases like this and others have made me stop buying any new hollywood movies.
riaa,mpaa and their stooges can suck doggie doo.
You know what’s funny is they’re using a precedent fro 1975. What a load of crap.
So now every companies that are selling guns and ammos will be responsible for what their customers are doing with them?
Does car’s companies will also be responsible for every infraction you made when driving too fast using their “technology”.
Does any corp selling bottle of water will be taken to court because some of their customers aren’t recycling?
You got tha picture? Where tha heck are we going with all that junk…
Bit of pot calling the kettle black there. “citing the pair’s lack of BitTorrent knowledge as a prime example.”
Fucking hypocrites, they have completely ignored all the technical relevancy of the BT protocol in their case (and that of the pirate bays)
Since we are missing reasoned-neo-beakz, I will play devil’s advocate.
I have also used the “Smith & Wesson” analogy and argued about highways full of get-away cars. Unfortunately, such comparisons break down when companies like iiNet and TPB fail to act as common carriers.
A common carrier would not pry into the usage of their network at all so that they maintain plausible deniability. However, in TPB case and now again in the iiNet case, the prosecutors simply show how the companies arbitrarily police their network as it suits their purpose. For example, TPB would take down warez if users complained about viruses. Now we hear how iiNet established ToS that allowed them to ban users without a court order. It’s like Kazaa claiming they couldn’t control their network and then pushing a forced SW update to all their users.
Going back to the S&W analogy, imagine if S&W refused to sell guns to gang members but happily provided arms to postal workers. Then suppose a clerk shoots up a post office. S&W gets hauled into court and tries to claim they can’t control what customers do with their guns. No. Sorry. S&W lost the right to make that claim when they demonstrated they COULD and DID exercise judgment but chose not to in some cases.
Likewise, TPB and iiNet want to claim “safe harbor” as “common carriers” that are not responsible for the actions of their users. At the same time TPB and iiNet actually do police their users except when it would benefit the RIAA/MPAA.
These companies tie their own noose if they do any policing at all and still try to claim “safe harbor”. This is why iiNet will lose this case.
this is all a sham
in the end Australia YOUR PWNED by the copyright industry cause your filtered and your controlled
are you not descendants of a prison colony YEA lets put them back in there cages
thats what Hollystupid has done to Australians
forget this all piracy problem and Enjoy downloading torrentkid is better and new tracker
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