AFACT v iiNet: Day 4 – BitTorrent Deals “Irrelevant”

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Yesterday, lawyers for Aussie ISP iiNet argued in court that the movie studios, represented in the case by AFACT, had a commercial relationship with BitTorrent.com. Now in day four of the trial, the studios have hit back, accusing iiNet of withholding information and focusing on the "legally irrelevant".

It’s day four in the copyright infringement case of AFACT – representing several Hollywood studios – and Aussie ISP iiNet (earlier coverage of day one, day two and day three).

Yesterday the court heard from iiNet barrister Richard Cobden, who described how
several of the plaintiffs and members of the MPAA had previously entered into contracts with BitTorrent Inc, the source of the official BitTorrent software.

BTLogosHe said that the logos of these studios appeared on BitTorrent.com (placed directly under the ‘free download’ link for the official BitTorrent client) and also on Mininova.

This lead Cobden to declare that the studios “….have engaged, at least from the logos on BitTorrent Inc, in the promotion of BitTorrent, the vehicle for all infringement in this case.”

Today AFACT barrister Tony Bannon criticized iiNet for these claims, describing them as “an excellent example of iiNet’s intent to focus not on legally relevant and factually indisputable matters but to focus on the legally irrelevant.”

Bannon said that the claims show that iiNet wishes to give the court the impression that his clients encouraged the exact same copyright infringement they now complain about in this case, going on to call the claims “legally irrelevant” and noting that the contacts with BitTorrent.com were terminated last year.

While Bannon insisted the details of those contracts are confidential, he was prepared to reveal that they included terms which required BitTorrent Inc to filter out torrents from their search engine which linked to illicit copies of the studios’ movies. He also said that iiNet knew that the contracts had been terminated but had not relayed that fact to the court, or when it spoke to members of the media.

However, an iiNet spokesperson seemed unrepentant. “The fact is the logos are still on the BitTorrent sites and serves the argument we are making, which is a couple of clicks away from where the logos are, you can download things. Part of the argument we are making in relation to all that is when it comes to what are ‘reasonable steps’ for iiNet to take about illegal downloading when they are not even asking BitTorrent to do the same thing?”

Earlier this week, iiNet had presented information to the court which showed that its competitors – other ISPs operating in a similar manner – also did not give in to AFACT demands that they should disconnect their copyright-infringing customers, backing up claims that iiNet had been singled out by the movie industry.

Tony Bannon criticized iiNet for producing this evidence, describing it as meaningless and “….an attempt to take the case outside of the real issues.”

AFACT boss Neil Gane briefly appeared on the witness stand and was questioned by iiNet barrister Richard Cobden. The exchange ended in a dispute over what confidential material can or cannot be used in the case.

Judge Cowdroy will decide on the issue by next Monday when Neil Gane retakes the stand.

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