AFACT v iiNet: – Pirates Will Be Cut Off With a Court Order
Written by enigmax on November 03, 2009Day ten of the trial between anti-piracy group AFACT and Aussie ISP iiNet. AFACT barrister Tony Bannon seems to have difficulty in taking on board something that iiNet CEO Michael Malone has said dozens of times already. Yes, iiNet will happily disconnect copyright infringers, but not solely on the basis of an AFACT allegation.
It’s day ten in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two, day three, day four , day five, day six, day seven, day eight, day nine.
Continuing first from yesterday’s proceedings, ITnews reported an exchange between iiNet CEO Michael Malone and movie industry barrister Tony Bannon, over Malone’s understanding of BitTorrent.
Malone told the court that while he had an understanding of the protocol, he had never used uTorrent, the client used earlier by Bannon to give the court a technical demonstration. Bannon’s demo used iiNet’s own tracker (an installation of RivetTracker) which it has used to distributed several press releases which all relate to the trial.
It is difficult to see where Bannon was going with his questioning, but it began with an admittance by Malone that the torrent files were intended to be used by people with access to a BitTorrent client. Malone then denied that the releases were specifically targeted at iiNet customers, noting that anyone can access them
Under further questioning regarding the inclusion of a note in the torrent files dialogue box indicating the files were non-pirated, Malone reiterated that while he had an understanding of the BitTorrent protocol, he did not have experience of the client used by Bannon
Then, with an apparent deafness towards Malone’s perfectly clear response, and demonstrating an apparent ignorance between a BitTorrent client and the BitTorrent protocol, Bannon sought to press Malone into admitting to his 400,000 customers that he didn’t understand BitTorrent.
Again, Malone stated that he didn’t know how to put a comment on a torrent file, but Bannon persisted in trying to get Malone to admit that he knows how uTorrent 1.8.4 works, but Malone said he’d never used it. There could, however, be people in iiNet who had, he conceded.
Bannon then said that in the last 24 hours the torrent file functionality for the press releases had been removed. Malone said that if it had, he certainly hadn’t requested it, asking Bannon how he was attempting to access the Internet, suggesting that a firewall in the court was stopping the transfer.
TorrentFreak’s checks show a single seeder on each torrent and each one worked absolutely perfectly.
Moving on to iiNet’s handling of copyright infringement allegations, iTWire reports that Bannon tried to paint a picture that iiNet’s policy of forwarding AFACT notices to the police was little more than a cynical attempt to pretend that they were dealing with them, when in fact they were not.
For the umpteenth time in this case, Malone said that he was under no obligation to act on mere allegations from AFACT which were not backed up by a court order.
“AFACT was telling us to disconnect customers without further ado,” said Malone. “The question is, what should we do when confronted with illegal activity? And our response is, report it to the proper authorities.”
While iiNet said it had always been policy to forward the notices to the police, ITWire notes that evidence emerged that the company had sent notifications twice, although there was no indication of how many infringement notices were in each batch.
Yesterday Malone said that the evidence provided by tracking company DtecNet’s investigation was “compelling” and should be reviewed by a third party and the courts. In the face of this statement, Bannon asked Malone why he had not taken action based on AFACT’s allegations.
“This is a right,” said Malone, “not an obligation of iiNet.”
These days arguments in favor of anti-piracy action seem almost incomplete with the obligatory reference to child pornography, as we heard in yesterday’s propaganda piece from CBS. This case is no different.
Bannon put it to Malone that if the evidence provided was “compelling” and Malone had received “compelling evidence” that an iiNet customer was accessing child porn, would the company allow the user to do so “day after day?”
Of course, any allegations of this nature would involve the police, and the police or the courts would do the investigation, get the proper paperwork and order iiNet to comply, which they naturally would. Malone said that on mere AFACT allegations of civil infringement (as apposed to an infinitely more serious and jailable criminal offense), such action would not be permitted.
Bannone then pressured Malone to admit that “…you’re happy to tell your customers this from the witness box,” that iiNet will not disconnect subscribers for infringing copyright.
At this point one has to wonder if Bannon is deaf or just plain stubborn. It is absolutely crystal clear to anyone following these proceedings that yes, iiNet will disconnect customers for copyright infringement, providing there has been due process and a court has ruled that disconnection is appropriate.
The case continues tomorrow.
Previously: MPAA Propaganda Hits 60 Minutes
Next: DRM Breaker Reports Himself To Anti-Piracy Group
37 Responses
jesus christ
That should impress the court that they have full respect for court orders.
Goodness, what a retarded lawyer.
Remember all if AFACT says to disconnect a user it must be done straight away, without investigation or worrying about the users civil rights.
I think a certain lawyer needs a hearing aid :P
its so entertaining to watch an industry whose best days are behind writhe in pain as it tries to litigate its way out of irrelevance.
who’s afraid of da internets now bainwhore?
“Day ten of the trial between”
“It’s day nine in the copyright infringement case”
Right.
“iNet customers, nothing that anyone can access them”
Nothing that? Noting? Mentioning?
i have to say i’m becoming more and more impressed with michael malone as this trial goes on – true understanding of the technology and the law, along with a willingness to stand up to the mafiaa!
we can only hope for such responses from other isp representatives when such cases are brought to court around the world – as they inevitably will be.
go michael – we’re all rooting for you! (:
You know what is strange? That this case is even before a court.
Isn’t this precise case covered under the passive conduit safe harbor clause? Shouldn’t just saying “law precisely states that we are not responsible for what our users do since we are only passive conduit …” be sufficient defense for this case to be thrown out of court? Why should any provider even listen to a private company telling them what to do? Only courts and police have such authority.
So, what exactly is the substance of this case? I somehow can’t find any reason behind this whole trial.
@ Rameses Niblick the Third
F*ck off
AFACT dont have a clue and for DtecNet’s lol ive seen them try to track a my java install i really wonder if they know what they are really tracking makes u wonder lol i do watch my firewall very closely.
the AFACT barrister is continually asking the same questions and continually getting the same answers. to me, it is pretty obvious that the result has already been decided by the court, simply because the judge should tell Bannon to ‘move on’ with his questioning and is not doing that. he, like Bannon, is waiting to pounce on Malone if he slips up and gives a different answer. biggest problem i can see is that, if iiNet win, AFACT will just keep going to appeal until they get the result they want. mark my words, the internet is soon to become limited, policed even unavailable to a lot of people in a lot of countries, purely because of the lack of forsight by the ‘industries’, their failure to adapt to new technology and business models and their out-and-out greed!!!
In rolls retroshare, ipredator, etc. stupid content goons will never win. Even their best trolls have fallen.
Idiocy has shown a new face in the face of these so called legal companies. Seriously, industries spend millions of dollars in these companies (enough to create more than a few very good movies and help more than a few musicians) and the results provided are so mediocre its ridiculous. The movie industry could be making more movies for more profit instead of paying this people that don’t do a damn of good to anybody. The MPAA FIAA AFACT all those guys are the real pirates. Scamming the big industries into believing they need them. Somebody should go blow their headquarters up.
I don’t know why we even bother reading these articles, we already know the outcome.
MAFIAA bribes court > Court rules against ISP/Individuals > ISP/Individual make an appeal > MAFIAA bribes again > ISP/Individual gets a more severe sentence
@10 – I don’t know either, man. I’m tempted now to go looking at the first couple of news articles about it to try and figure out the answer.
@16 – Pretty much. No matter what happens here, we’re going to the Supreme Court when this gets appealed. It’ll go higher and higher until iiNet can’t pay any more, and they’re scuttled under the financial weight of it all.
It’s a dirty goddamn tactic, but it’s probably going to work.
i wonder, if just one ISP can be ordered to warn/disconnect illegal downloaders or torrentsites, while other ISPs go on as usual…
The single largest miscalculation by piracy advocates was to believe that a new digital format and a new means of distribution will change business, the rule of law, the function of the courts, our collective sense of right and wrong, the course of civilization. None of that will come to pass. Common law and the status quo, indeed every bit of this, is based on human nature and nothing, NOTHING ever changes that.
Good luck with your griping and “blowing up buildings.” Piracy grows more boring by the moment. “Free” and “you can’t stop me” is so 2001.
@Reasoned Mind:
That’s right, our collective sense of right and wrong tells us that duplicating things leads to an utopian goal. I mean who wouldn’t duplicate food, if he could, to help the starving children all over the world?
You see Reasoned Mind, people who share FOR FREE do so out of sense of morality, because they don’t gain anything and help others for free.
You, buddy, are not entitled to talk about right and wrong and morals here, when we all know you, like the MAFIAA, only support $$$$.
No, it is not moral to pay for something that has infinite supply or you can supply yourself. That’s monopoly greed. Would you pay for air to breathe as well?
just ignore such comments as from Reasoned Mind and alike, otherwise he/they will never shut up
But in fact, you CANNOT supply it yourself, Brain, and therein lies the fatal weakness of your utopian vision. Utopia doesn’t exist. Never did. You can only wait until someone else does the work FOR YOU and then COPY it for yourself.
And that, as we well know, strips the rights from the worker, in our case, the recording artist. You’ve been doomed to fail since Napster. Keep whining about Utopia and see where it gets you.
Reasoned Mind: I appreciate you fight for the artist but the problem with the system isn’t on the consumer’s end. The record labels and media corporations have gotten used to a system that is no longer working. They need to adjust to stay afloat. Pirating (at least in my regard) is because I am fed up with their business model. If they find a system that will work for me I will pay.
I am a musician myself. I am not signed to a major label but conveniently I make enough money doing what I do to continue. I play local shows with my band and sell merchandise we manufactured ourselves.
How am I able to afford a $2,000 instrument, travel costs, merchandise, and other costs by charging $5 a ticket? Only God knows I guess because that is not the will of the record label.
The musician matters, and I can tell you understand that but it is not being done properly. Media corporations are the middle man taking their share of the cut (and a decent one at that) for doing something that is no longer needed. The artists can promote and distribute the work themselves!
The test of time has shown us that the good artists will prevail regardless of CD sales. The bad ones that are being carried by labels *COUGH* LILY ALLEN *COUGH* will sink regardless of how they’re propped up.
Also, @10; the case was filed initially because AFACT was accusing them of not following their own ToS. It says that they will not tolerate illegal use of their services but when it comes down they don’t do anything about it.
It’ll be interesting to see if this going to be another corporate show trial or not. Cause the corporate lawyers really haven’t made a dent in the defense.
@Reasoned Mind: No you must have misunderstood me. Of course the item itself, like my air analogy, wouldn’t exist if musicians didn’t exist. What is the bad thing is when people are EXPLOITING this by imposing a paying as much as they want.
For example, how much does it help Michael Jackson now that he’s dead? The MAFIAA still sell his albums, actually they BENEFITED from his death (huge sales increase).
Can people still make money while they’re dead? According to the MAFIAA, yeah they can, pretty awesome if you think that no one actually employs dead people, the normal people who work our asses off.
I’m all for supporting musicians for their music and services (again, MAKING music is itself a service, not SELLING it), not for their exploitation of our pockets. (hey, I’m myself familiar with software programming…)
And if you think that the world still lives in 19th industrial stage, you should adapt to modern stage. Look around for free software and the like (no, not pirated, but really free software), which was unheard of just a few decades ago.
Most of the Linux guys make money from SERVICES, not from exploiting something because they can infinitely supply it without lifting any additional fingers.
Programming is itself a service also, SELLING MULTIPLE COPIES is not.
Should have said flatout, YEA sure, we want EVERYONE to pirate crap so we make tons of money and make you eat crap for lunch… Or something saying, Well if we didn’t allow infringements then I guess you would be out a job, now wouldn’t you…
AFACT have no case. The ISP has simply acted in accordance to the law and valued its customers.
AFACT just can’t seem to grasp that, just because someone says “no” to them, that doesn’t mean that the person’s broken the law.
@11/proof read this
Learn to understand the importance of proof-reading in written articles and the effect is has on what quality ratings it’s given.
That’s only after you move out of mums’ basement.
There must be some tech-savvy Lawyers somewhere.
So the question has to be why do these people not higher them, I wonder if the tech-savvy ones tell there where they can stick it..
It’s funny how the CEO of an ISP is arguing that these infringements need due process to a fscking COURT and LAWYER. It will be interesting to see what happens if they lose. Perhaps i will start sending unsubstantiated cease and desist letters to AFACT for stealing my mojo and demand results without court involvement
if iiNet lose everyone will just jump ship to a different ISP.
They chose to fight the 3rd Largest company in Australia, Telstra and Optus are absolutely massive (not sure who parent companies are) and good luck to any company who wants to take them on.
Poor iiNet, AFACT is just picking on the little guy.
@31 They chose iinet cause they knew it would be easier to take them on then it would to do battle with Telstra which is still partly owned by the government and optus which is owned by singtel.
Once they have taken down iinet then it becomes infinitely easier to take down the big boys in Telstra and Optus.
Capn – what is the name of your band – can I grab any of your stuff anywhere?
@23 Capn – They couldn’t violate their ToS since it was never proven by court that their customers used their service illegally. Until then, they aren’t obliged to do anything.
So, again, the case makes no sense.
It’s clear Reasoned Mind failed several important classes in school, not the least of which seems to be the social studies (history for example). He wants us to believe the world is set in stone, forever unchanging. That is wishful thinking, a common fallacy among his type. Pretty unsurprising actually, considering he seems to hold some position within the music industry, an industry that has gotten used to their monopoly and the easy money it affords them. Morality is irrelevant. How either side wishes the world to be is irrelevant. The entertainment industry must find a way to compete or face annihilation. I do agree with one assessment however, regarding utopians. Anyone who thinks that such a world is possible or that their actions are in some way altruistic are deluding themselves, and that goes for everyone on both sides of the issue. Just like countries, you either work together to find common ground on which neither side will ever be 100% happy, or you go to war, in which case nobody wins. I’m willing to pay for my media, are you willing to charge a reasonable price for it and not load it with DRM?
“It says that they will not tolerate illegal use of their services but when it comes down they don’t do anything about it.”
Illegal use that has been proven true, not simply alleged illegal use. There is a big difference. Everyone should be made to live for one month without due process, where the only proof you need is a pointed finger (some countries are like this by the way, though a bribe is generally required in addition to the allegation). Lets see if you still side with AFACT after that. I say we start by disconnecting Reasoned Mind from the internet. I know for a fact he is a hypocrit who actually uses P2P software.
Yeah. Deaf. Most likely deaf.
Nice discussion here in the comments. And I see Mr Reasoned Mind still fails to understand the other side. Way to go Mr Musician (23, Capn).
Also, nice comments regarding the free softwares. I downloaded Open Office recently and it works wonders. My Office 2007 license didn’t allow me to validate the copy on my 3rd computer. Now, why should I pay for another license if I’m the only one that ever uses those 3 machines? I wonder…
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