Day One: AFACT v iiNet BitTorrent Piracy Appeal

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Six months ago Aussie ISP iiNet celebrated following its legal victory against the Australian Federation Against Copyright Theft. Now the pair are back in Federal Court for the appeal, where AFACT hopes to show that iiNet acted illegally when it refused to take action against customers who file-shared movies and TV shows using BitTorrent.

February this year saw Aussie ISP iiNet celebrating after it successfully defended legal action brought by Hollywood anti-piracy outfit AFACT.

Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network took iiNet to court in the hope that a judge would find the ISP responsible for copyright infringements carried out by its customers.

The Australian Federation Against Copyright Theft lost the case but didn’t give up. They said there was a “fundamental error” in Judge Cowdroy’s original ruling – that AFACT had sued the wrong person and should’ve gone after actual infringers – and earlier today the pair faced each other in Federal Court for the appeal.

From early reports coming out of the Court, nothing much appears to have changed.

AFACT continues to insist that iiNet authorized its customers to illegally download movies by simply not stopping them from doing so. ‘Authorized’ is the key word here. AFACT have chosen not to go after the BitTorrent users referred to in the case – the so-called ‘primary’ copyright infringers. Going after these individuals is “undesirable” it insists. Instead they want the Court to rule that iiNet ‘authorized’ their infringements, which would make the ISP liable for their actions.

Representing AFACT, David Catterns told the panel of three Federal Court judges that despite being provided with huge numbers of IP addresses and times of copyright infringements carried out by their customers – data which iiNet chief Michael Malone labeled “compelling evidence” – the ISP did nothing to stop further illicit activity.

In his opening salvo, Catterns put forward the case the of one iiNet customer in particular. Referred to in court as ‘RC-08’, the user had allegedly seeded 40 copyright works during 2008 and 2009. Catterns claimed that at some point ‘RC-08’ had exceeding his monthly traffic limit and iiNet had advised him to upgrade his package along with the suggestion that he could “get more of the stuff you love”.

This contact iiNet had with their customer was a point at which the ISP could’ve acted to prevent infringement, he argued.

Catterns went on to state that while iiNet takes action to deal with the menace of spam, the ISP did nothing to block or otherwise tackle file-sharers on its network. He suggested that iiNet could have taken a broad range of actions such as sending out letters, throttling customers’ connections, right through to suspending accounts.

At this very early stage it seems that AFACT are simply restating points they made in the first hearing, points which almost totally failed to convince Judge Cowdroy to rule in their favor. It is difficult to see what they can say in order to change the direction of the original decision but one thing is almost certain.

“Neither the original case nor this latest appeal will stop piracy,” said iiNet chief Michael Malone earlier. “Even if in the unlikely event they won the appeal.”


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