iiNet defended itself for the first time in the Federal Court yesterday, saying the number of infringements on its networks alleged by the Australian Federation Against Copyright Theft was “artificial” and “highly exaggerated”.
The defense came on the second day of the landmark trial, after AFACT said on Tuesday it had recorded nearly 100,000 instances of copyright violation by iiNet users on its networks with many downloading popular films and television shows.
“With all due respect, there is a very clear attempt to colour allegations of authorisation with these very large numbers,” counsel Richard Cobden said yesterday.
“How many times does someone infringe by making a film available online? Our learned friends [of the plaintiff] say it’s a repeated act, we submit it’s one act and [a] continuing act.”
Cobden said the nature of BitTorrent technology, by which a user requests parts of a file from different users rather than downloading a single file from one source, was the basis for AFACT’s claims.
He said each alleged infringement counted by AFACT represented a request, or “ping”, to another computer, and did not actually represent 100,000 separate files. Instead, he said the number of potential infringements should be “in the hundreds”.
“It’s not a computer that makes something available online – it’s a person… someone’s got to take some overt action. We don’t know who [that] was,” he said.
Meanwhile, an iiNet employee was alleged to have asked the WA police to prosecute an AFACT investigator gathering evidence for the trial.
It was said in the court that an investigator named an account “honeypot” in order to both engage and identify users infringing copyright laws. An email exchange between employee Rebecca Moonen and chief executive Michael Malone was read out to the court.
“Question just for you – how are we going to deal with the known honeypot user?,” AFACT’s counsel alleged Moonen asked Malone on email.
“Even though it’s too late – we should at least demonstrate that we will ‘do something’ when made aware of an illegal activity? Or do you think the race has been run?”
Malone was then alleged to have responded by the suggestion to “report him [honeypot] to police and ask for a criminal prosecution.” Moonen then allegedly sent the emails to a detective at the WA Computer Crime Squad.
“Hey [named withheld], we’d like to report the client who ‘posed’ as an iiNet customer, downloading a whole pile of content, and then is now suing us as he was able to infringe copyright.”
“Is there any way I could call in a personal favor [sic] and have that individual prosecuted? Today? :)”
The case is set to continue today.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
