AFACT v iiNet: Safe Harbor Protection Intact, Says iiNet
Written by enigmax on November 13, 2009iiNet’s chief barrister told the court today that the only proven ‘infringer’ in the case was AFACT’s own investigator, which secured iiNet’s protection under Safe Harbor provisions. He added that the number of claimed infringements were inflated and iiNet had complied fully with privacy aspects of the Telecoms Act.
The trial continues in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (multiple links to all our earlier coverage can be found here and here and here)
The case continued in the Federal Court, with iiNet barrister Richard Cobden beginning his closing submissions.
Referring to the allegations by AFACT that it detected around 97,000 instances of copyright infringement carried out by iiNet subscribers, Cobden said that there was actually only sufficient evidence to prove that a single subscriber had carried out any. That individual was the mole planted by AFACT and DtecNet to carry out deliberate ‘infringements’ on behalf of the plaintiffs.
iiNet’s protection under Safe Harbor provisions which limit a carrier’s liability under the Copyright Act remained intact, since no infringer had been identified other than AFACT’s own investigator. Since he was authorized by the plaintiffs, he committed no offenses and could not even be accurately categorized as an infringer. On this basis, iiNet did not disconnect him.
Cobden admitted that AFACT’s method of counting infringements indicated that it’s possible that from a sample of 20 iiNet users, on average they could have downloaded two to three movies each in the reported monitoring period of 59 weeks.
“It’s clear from the accounts that ultimately the [infringing] activity is likely to account for a very modest percentage of that user’s activity [and] a very modest percentage of their quota,” said Cobden as reported by ITNews.
Cobden went on to say that this didn’t amount to the “dramatic” amounts of infringement alleged by AFACT, so there was no evidence that this activity drove the uptake of iiNet high-bandwidth accounts from which the ISP profited.
Disconnecting users on such limited numbers of infringements shown on the sample accounts would have been a disproportionate response, he added.
The iiNet barrister also spoke in detail on iiNet’s privacy responsibilities under Section 112E of Australia’s Telecommunications Act, which he said undermined AFACT’s claims that by not complying with its requests it authorized the infringing activities of its subscribers. Detailed information on this key aspect of iiNet’s defense can be found here.
iiNet was never legally obliged to deal with AFACT infringement notices, Cobden told the court, noting that the law concerning copyright “authorization” does not require any ISP to suspend or terminate a customer’s account.
Cobden attacked allegations by AFACT that iiNet’s business model relies on illegal file-sharing, saying that the anti-piracy outfit had a distorted view of the world.
“In many ways the applicants look at everything that iiNet does entirely through the prism of their own concern for copyright infringement,” he said, noting that the company had been in business for many years and had simply kept up with offerings from its rivals Telstra and Optus.
“Once you take that prism away and look at it in terms of business and keeping up-to-date with technologies, and keeping its customers happy, almost every document, internal document, takes on an entirely different reflection,” he added, as quoted by ZDNet.
Cobden said there was zero evidence to back up AFACT allegations that iiNet users burned downloaded material onto CDs and DVDs and distributed them. This, he said, significantly decreased the number of copyright infringements claimed by AFACT.
iiNet’s legal team will continue with their closing submissions next week.
Previously: Demonoid Rewrites Code, Comeback is Imminent
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28 Responses
Just legal mumbo jumbo. I hope the judge will see this case the way it really is.
With their wrong legal basis, AFACT just should not win this cause. If they want to win it, they have to change the law first.
iiNet have done everything required by the current laws.
owned.
Good closing speech. *Very* good. Only a bribed judge would rule against iiNet. The law is on iiNet’s side – they are not legally required to police what their customers are doing.
The MAFIAA have nothing to lose, basically they are testing the safe harbor law that protects the ISPS, if they lose… they are exactly in the same place they have been from the beginning… if they win….
Because of this case and other stuff I am boycotting Hollywood and MPAA.
I refuse to buy any movies new.NO MORE !!!
i will get movies used.
Yes indeed only a bribed judge would rule against iiNet. Unfortunately those judges are not in short supply anywhere in the world.
This is a quote from the faq on my ISP’s web site.
“We aren’t “Big Brother.
What you do online is your business! We never have and never will sell information regarding your internet habits.
Truly unlimited bandwidth.
No caps, limits, throttling, or overage fees.”
More ISP’s should be like this and then they would have more loyal customers like me which is more money for them.
Good on you iiNet, fight the good fight!
@4:
It’s indeed as you’re saying. Sadly, they have the money to risk.
The same money that comes from our legal purchases of CDs, DVDs, etc. They use our money against us. How ironic.
@8 James
…money which should go to the artists…
@8
conclusion: no legal purchases anymore!
If we look at this from another perspective, one that know nothing about bittorent or anything like that, iiNet final statement looks to me like it is really accurate.
The problem is, the MAFIAA is full of money they stole from us. The real question is, have they bribe the judge or no, they probably tried at least.
I hope one day, this method will explode in their faces.
@9, Rabbit80
That’s what I argue the most! If they’re so concerned about the payments and well being of their clients they should stop wasting everyone’s money on unbased lawsuits. This $1mill or whatever they spent against iiNet would prop up another Brittany Spears for what.. 3, 4 more months with all that auto-tuning in her voice and CG over her videos?
Real artists will grow no matter what. Ones that need to be propped up will fall but haven’t because of these greedy corporations trying to tell US what to listen to, not the other way around.
Meh; I hope for the best here because this case will really be felt around the world.
If AFACT wins then RIAA similar companies around the world will be taking ISP’s to court.
I can see it now in the US RIAA vs AT&T/TimeWarner/ALl other major ISP providers… demanding that ISP’s become the cops because the cops can’t legally do what RIAA wants.
I feel that this major coperations would just be happier if they could throw on a “thieft tax…” Claiming that everyone steals this just makes sure they get paid. Like the Tax on burned Cd’s.
@8,
you mean something like this:
http://ezee.se/articles-blog/2008/07/03/buy-your-mugger-a-gun/
:)
@12 Capn,
What auto tuning and CG effects? Britney does not need all that, she just lip syncs :D
Just google “britney lip sync” and the the number of results you get..
Heh, fingers crossed!
Maybe humanity isnt doomed afterall, gives me a small amount of confidence back, people are still willing to fight for freedom =)
@13 LOL I could see RIAA trying to sue AT&T. AT&T would laugh at the riaa. No way No how.
Offtopic: Anyone happen to know whats up with rlslog.net? They’ve been up and down, and now they appear to be down completely.
rlslog is a bit frisky at times. try again,their up now.
Wow… In the nuts. Complete ownage. Afact fails.
Yea James, money we give them against us. Bitter irony.
Amazing argumentation there.
As it is – iiNet should win. The case is BS.
However….legal systems being what they are, and based on other cases around the world….I would not be surprised if AFACT ended up with the verdict they want. Sad.
Let AFACT know what you think if the current situation. I have already.
http://www.afact.org.au/contact.html
i have always urged people to sign up with and support IINET , i even work for optus and tell people that iinet are the best , come on Aussie support AUSTRALIAN ISP’s not Optus that is owed by singaport or telstra bigpond that rip you off out of house and home
Cool – good closing! Still something tells me the judge will rule in favour of AFACT (I mean by all rights the pirate bay shouldn’t have lost their case but they did because their judge had known ties to copyright groups)
Hey, I believe there is a provision for a person to be declared a “vexatious litigant”, which means that they can’t take any more legal action (I’m not sure if that’s against a particular defendant, or generally).
I don’t think this has ever been done to a corporation, but legally there’s probably no reason it can’t be done!
A “vexatious litigant” ruling would certainly make AFACT and other anti-piracy groups think twice about the “nothing to lose” idea.
iiNet isn’t in as good a position as some might think. Their biggest problem is that the Safe Harbour provisions of the Copyright Act require them to take ‘reasonable steps’ to prevent copyright infringement, which includes having a policy to deal with accused infringers. Problem is that they have no such policy, and ‘head in the sand’ comments like “the [infringing] activity is likely to account for a very modest percentage of that user’s activity [and] a very modest percentage of their quota” don’t really help their case.
Other ISPs at least have a policy of passing infringement allegations on to their customers, which is perfectly possible to do without infringing anyones’ privacy. If iiNet lose this case, it will be because they failed to take even this step – not because the judge was bribed.
Good point Sanchez. I would like to see iiNet win this, but they may have shot themselves in the foot with that oversight. Judges are not too happy if you have not at least made an effort. Lets hope for the best.
Definitely a case I have been following since the beginning. I still believe in “innocent until proven guilty” which is what a lot of this has to do with ultimately. Essentially AFACT want to be a law unto themselves and send out notices on a whim to have people banned. If this comes through, I can guess what the next major email based malicious attack is going to be.. Forget the “I love you” virus.. This is going to be much simpler.. Simply hijack the AFACT or similar email servers and get everyone banned..
so what is the latest news then? no further closing arguments from iiNet? no decision from the court? no release of how much the judge has been bribed with? AFACT lost and managed to stop the info from being released?
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