AFACT v iiNet: Safe Harbor Protection Intact, Says iiNet

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iiNet'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.

AFACTThe 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.

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