Perth-based internet service provider Westnet may have breached the Telecommunications Act by sending notifications of alleged copyright infringements to customers, iiNet chief executive Michael Malone said in Federal Court yesterday.
The comments came on the ninth day of the case between iiNet and the Australian Federation Against Copyright Theft, which is now in its second fortnight of hearings.
Malone told the court, under cross-examination by AFACT counsel Tony Bannon, that iiNet subsidiary Westnet breached the Telco Act by passing along the notices.
“I think this was a very grey area and [Westnet] were ill-advised to do that over a long period of time,” he said. “I believe it was a very grey area and iiNet’s policy was to stop [passing on the notices].”
“iiNet’s policy was reached after lots of consideration. I’m reluctant to reach into any area where we might be breaching privilege in terms of how we reached that policy.”
Westnet’s policy of forwarding the notices was stopped when it was acquired by iiNet last year. Malone went on to say that iiNet was “not permitted to match up [customer] data” in order to identify alleged copyright violators.
iiNet’s responsibilities regarding the notices is at the heart of the current dispute, as the entertainment industry alleges the ISP should have disconnected users engaging in piracy. iiNet claims it is the responsibility of the police to follow up notices.
“Passing [the notices] onto the Australian Federal Police or police – we thought was appropriate,” he said.
Malone also defended accusations that iiNet had “obstructed” other parties from taking action against alleged copyright violators by not taking action themselves.
Bannon referenced a set of email conversations between Malone and Westnet operations manager Alan Ariti, which related to the practice of passing infringement notices to customers. In one of the emails, Malone allegedly wrote that Westnet should use a policy “a little less um… proactive”.
“Less proactive would be better described as… obstructive, would it not?” Bannon said.
“No…We’re not standing in the way of you [the entertainment industry] taking any action whatsoever,” Malone said, also stating again the company’s policy was to refer the notices to police.
Malone also said a number of the infringement notices from studios in the United States had been discovered using a tool called “MediaSentry”, which he claimed had been “rife with errors for years”.
The case continues today.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
