AFACT v iiNet: BitTorrent Piracy Claims “Artificially Inflated”
Written by enigmax on October 07, 2009Today marked the second day of court action between several film and TV studios against Aussie ISP iiNet. The studios said the ISP knew about and could have done more to halt nearly 95,000 infringements. iiNet hit back, claiming AFACT’s figures had been artificially inflated by a flawed process.
On the second day of the case (report for day one here) AFACT presented the court with documents which it said showed internal emails between iiNet employees (including CEO Michael Malone) which discussed how to deal with copyright infringement notices.
AFACT said that the email documents, which were seen by CW, show that the ISP could have done more to deal with the alleged infringements.
AFACT’s barrister, Tony Bannon, noted that iiNet training documents indicated that the ISP knew its customers were using P2P networks, which he said showed the the ISP knew what its customers were doing. Of course, just because iiNet knew the protocols or networks being used by its subscribers, it doesn’t necessarily follow that they knew the copyright status of material being transferred. Indeed, with BitTorrent, monitoring and identification (by, for example, using fingerprinting techniques) is almost impossible.
The emails, which were sent between iiNet CEO Michael Malone and bosses of another ISP, Westnet, which at the time was being acquired by iiNet, were said to contain discussions of how to deal with AFACT infringement notices.
According to ITnews, Malone asked how Westnet dealt with these infringement notices. Westnet had developed an automated system to pass on infringement notices to its customers, a process Malone described as “making more work for no benefit.”
While Westnet said it was “acting with conscience” when it passed the AFACT infringement notices on to customers, Malone was said to be scathing in defense of due process and consumer rights.
“Taking the opposing argument, a random third party is lodging an unsubstantiated accusation against a customer and you’re passing it on?” wrote Malone in an email, continuing, “Your current approach is doing damage to the industry and iiNet’s position on this matter.”
After AFACT ended its opening statements around lunchtime, the court heard those from iiNet.
Richard Cobden for the ISP characterized AFACT’s case as a “novel composition and adventurous” and “a dramatic extension of the application of the law”. He then went on to describe AFACT’s earlier allegations of 94,942 infringements as “artificially inflated by a contrived process”.
Cobden said that AFACT incorrectly counted these infringements. According to CW, AFACT counted the same infringements more than one – if it checked in the morning for infringements and then again in the afternoon, if the same infringement on an individual’s computer was still ongoing, AFACT counted it as another infringement, not a single extended one.
Tomorrow will see the end of iiNet’s opening arguments and then it will be AFACT’s turn to call its first witnesses.
This section of the case is scheduled to run for two weeks, then everyone will take a break for another two. The case will then conclude after a further two weeks of hearings.
Previously: The Pirate Bay Relocates to a Nuclear Bunker
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36 Responses
I’M NO1
Good luck to iinet, whatever the outcome of the case it will set a precedent for others for sure
AFACT presented the court with documents which it said showed internal emails between iiNet employees (including CEO Michael Malone) — I’m curious *how* AFACT obtained those *internal* emails? And if the approach they used was legal?
AFACT presented the court with documents which it said showed internal emails between iiNet employees (including CEO Michael Malone) — I’m curious *how* AFACT obtained those *internal* emails? And if the approach they used was legal?
They are big enough that they matter (aus third largest ISP) but small enough that they think they’ll have an easier time in court with them.
What city is the trial being conducted? I’d love to have a look if it were my city.
P.s. F you AFACt – stop trying to get into my computer.
It pisses me off how they think they are above and beyond the law. How did AFACT obtain these internal emails and how did they get their hands on their training materials? Sounds fishy.
@4/5
More than likely they obtained them during the discovery process, in which either side can request evidence.
#7
Sydney
@7
Its being conducted in Sydney.
@9
If iiNet itself provided such documentation to AFACT they are stupid :)
@12
Such is the legal process.
http://www.iredellglass.com
God dammed greed. You all know the outcome of this case was decided well before the trial. These filthy rich media companies just pay their way through everything. This shit has already happened in US and Sweden, it’s only a matter of time before it happens in AU. Get a VPN service before these companies bend you over with a lawsuit that’s worth more than we’ll ever see in our lifetimes. Remember encourage artists to be creative and boycott greedy labels
no further mention, here at least, where ‘the judge indicated he would be keen to see a live BitTorrent demonstration, rather than just a recorded demo’. has this taken place or is it to be totally left, in case it shows how flawed the AFACT information is? what about the names of the other ISPs that the judge wanted? as usual, anything that disputes the industries arguments will be ignored and anything that proves their information to be nothing but lies, bullshit and drastic over exageration will be disallowed!
One of the members of AFACT is Channel 7 – a boring channel for working families working families Australian working families – where Prime Minister Kevin Rudd launched his career. Rudd was a nobody until he did a breakfast TV stint on Channel 7. They still have him on and last year did a TV special about him. Blatant kiss ass, and Rudd is returning the favour. Communication Minister Conroy has applauded the law suit and he said Rudd’s firewall will block peer2peer – though I reckon they’d get kicked out of office first!
Sucks our taxes pay the salaries of pukes like these guys.
why the hell would iiNets lawyers even bother arguing about “94,942 infringements”? to me that lends some credence to AFACTs position – ignore it and concentrate on the main issue of legality on responsibility of the ISP
@16 – showing that they’re using flawed processes to gather evidence casts doubt over their whole case.
Thanks TF, keep us updated with this as it happens.
@16 I think it’s to undermine the credibility of the prosecution by demonstrating that they have no real understanding of the technology they’re attacking and/or have a tendency to lie under oath.
Best of luck iiNet.
http://pirlog.com
AFACT’s Barrister, Tony Bannon . But what Tony Bannon will not tell the Court that he goes into Court and knows full well his clients are at least lenient with the truth, no that’s not what they are its Liars. LIARS that’s the word I wanted. And it’s his job to be as lenient with the truth, as he can.
Best of luck iiNet.
@ 17 and 18, thanks for the feed back guys but this is a legal argument not a tech one and by moving away from that it may confuse the outcome, i appreciate that they may be intertwined to an extent but imo the simpler this case is made the better for the defense
I’m also wondering about emails.
But still cheers and support from http://www.kickasstorrents.com
@21 Oct 07, 2009 at 15:38 by GG:
Would we as judges take notice of anything that has more then 1% chance of being wrong into account?
If AFACT can’t even count with accuracy what make them think that the traffic they observed was in fact illegal? How would they know that. The music could have been flagged as illegal but do they know that for sure?
How do they differentiate a legal download from an illegal one if they can’t even get the counting right, thus putting serious doubt into their abilities to discriminate between legal and illegal traffic.
I do think that can go a long way.
The legal argument is no case to answer ………The rest is jest the AFACT and others being lenient with the truth in, legal terms committing perjure give them 2 to 10 a Jeffrey Archer .AS they are already in Australia so us brits can not send them out there. Ps we do not want them back.
Anonymous @23
If they can’t count and it’s in the Court in documentation its 2 to 10 for committing perjure. Cannot make that sort of error in Court documents. Case thrown out and give them 2 to 10 as that sort of documentation would have been in the form of affidavits sworn to be the truth no errors of fact allowed. Give them 2 to 10 that is the AFACT
@25 Oct 07, 2009 at 16:38 by outlaw:
Perverting the course of justice is what you meant to say when mentioning Jeffrey Archer.
Fabrication of evidence could be seen as a perversion of the course of justice thus carrying a max sentence of life. But I doubt the aussie kangaroos will incarcerate those real criminals like that LoL
Let’s eradicate AFACT!
is this not the same as holding ford accountable for drunk drivers???
stupid skippys :(
Uhm, no because ISPs have control over what their custemors do, and thus can privent misues of their services.
This attitude just goes to show that ISPs have become desensitized by piracy as well. They knew what pages their customers were visiting (there for what torrents they were downloading) and even if they only knew that they were using bittorrent. Given the popularity of bittorrent as an illegal tool, they should have looked into each case, not simply looked away and hoped for the best.
Anonymous 26
Commit perjure is what Lord Jeffrey Archer did in his libel case. The offence of perverting the course of justice came later.but you are right he served time for perverting the course of justice. Butyou cant have the second without the first
liquidmonkey @28
Yes contact
Claims R Us case is as sound as the AFACTs one. If no cars sold no drunk drivers!!!
Justice is blind…oh! well so am I when I pirate stuff LoL
Sorry I’m trying new jokes.
So they falsified the numbers to make it look like p2p was more of a problem than it really is. I hope that backfires
And yeah how did they get the emails?
Don’t think they just asked for them.
@30 Oct 07, 2009 at 21:29 by .neo.styles|nvDX:
I dear you go through the logs of your computer right now and identify every single page you visit LoL
You obviously never worked as an IT manager on any gigabyte log file.
Besides why the ISP have to have any responsability for the problems of others I doubt the RIAA care about the problems their music is causing to the ISP that oversubscribe to make a buck and don’t like P2P because it make them look bad because of the over over over subscription scheme from cable it turns their service into s***.
I think the ISP should sue the RIAA and MPAA and the software alliance for not being able to stop piracy and causing financial damage to the networks that are forced to upgrade their hardware to keep pace.
Or the public should sue the RIAA and MPAA because they are the root of piracy that is turning our children into criminals. If there was no music there would not be crimes, it works to outlaw drugs so it should work to outlaw the music industry anyone creating music and distributing it should be held responsible for the children they subvert.
@30
so if ISP’s know whats happening on their network then why is child porn still a problem? by your reasoning ISP’s think its ok to allow child porn on the internet.
that is surely not the case!
there is not a single ISP on earth that can sift through the petabytes of data and decide what to let through and what to not.
u surely are living on another planet.
“…it said showed internal emails between iiNet employees…”
That’s a crime here. I mean, having such communications without the parts consent and without judicial support to monitor such communication. I wonder if it is a crime in Australia?
And yeah, iiNet can’t see what’s being transferred because the data moves in packs. MAFIAA and merry friends seem to have trouble understanding this…
FAIL lol.
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