It’s day eight 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 and day seven).
Earlier in the case, AFACT submitted evidence that it claimed showed around 95,000 breaches of the studios’ copyrights by iiNet subscribers. iiNet barrister Richard Lancaster cross-examined AFACT lawyer Michael Williams on techniques used by AFACT’s investigators to count these alleged breaches of copyright.
The recording of these claimed breaches were described by iiNet lawyer Richard Cobden during day two of the trial as a “novel composition and adventurous” and “a dramatic extension of the application of the law”. He then went on to describe AFACT’s claims of 94,942 infringements as “artificially inflated by a contrived process”.
It was then revealed in court that AFACT had probably counted some of the same infringements more than once – 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 yet another infringement, not a single extended one.
Another process AFACT used to record alleged breaches of copyright breach was by using a Reverse DNS Lookup – a process used to determine a domain name associated with a an IP address by using the Domain Name System (DNS) available on the Internet.
iiNet’s lawyer Richard Lancaster said this was not a reliable method since DNS records were often out of date. Lawyer for AFACT Michael Williams agreed this method was “not 100 per cent reliable”.
While re-addressing the possibility that AFACT was relying on evidence which artificially inflated the number of alleged infringements, following cross-examination both AFACT and iiNet conceded that technical issues can cause iiNet subscribers to leave and then reconnect to the network, resulting in the same iiNet users being allocated multiple IP addresses during an online session. If AFACT was tracking these particular users, it would then identify each IP address as a separate infringement, which would inflate their claims on numbers of infringements.
Of course, the accuracy of such evidence is important, since any damages awarded for, say, 50,000 breaches, would be substantially less than 95,000 breaches.
“If the judge finds further down the track that iiNet is guilty of the claims AFACT is making – which I don’t believe they will – because they are seeking damages, the number of offences does matter in terms of the final decision on what the damages will be,” an iiNet spokesman told ARN.
Today’s proceedings bring an end to the first two weeks of hearings in the case. It will resume November 2nd.