The Australian Federation Against Copyright Theft has accused iiNet of understanding the full scale of copyright infringements undertaken on its networks but decided its own interests were more important.
The claims come as the case between the two parties draws to a close, after four weeks of debate regarding iiNet’s ability to track down copyright violations and the nature of BitTorrent technology.
During AFACT’s closing remarks in the Federal Court, counsel Tony Bannon SC has said iiNet managing director Michael Malone was aware notices given to the company by entertainment groups contained evidence of copyright infringements before any legal case was made.
Additionally, Bannon said iiNet has made contradictory statements regarding copyright infringements on its network after claiming the company in “written, press release and affidavit word” had said it could not act on copyright notices from AFACT because they were simply allegations.
“But when asked the question in cross-examination, the truth is they regarded the notifications as compelling evidence,” Bannon said.
“It’s another dramatic example of the lack of credibility that can be attached to evidentiary statements by iiNet. To the extent that there are still shreds [of evidence] left to support any aspect of their case, Your Honour should disregard them.”
Bannon also said iiNet could have used its facilities designed to contact customers with overdue bills in order to contact them about copyright infringements. Customers with overdue bills can be restricted to only certain websites, while others can have their account removed altogether.
“But when it comes to some risk of not being able to take advantage of customers that demand bandwidth for copyright infringement purposes, that’s when the shutters come down,” he said. “That’s when it all becomes too difficult.”
He also attacked iiNet’s decision to give copyright infringement notices to the WA police, saying this “could not be regarded as a reasonable or even sensible step”.
iiNet forwarded the notices because it said it could not take action against alleged copyright violators due to restrictions under the Telecommunications Act.
The company, the country’s third-largest ISP, also defended itself by saying its “Freezone” website, which allows iiNet subscribers to download content without using up their bandwidth quota, helped reduce piracy. But Bannon rejected that claim.
“The application of reasonable steps is not by the creation of the freezone. [Its creation] cannot overcome iiNet’s knowledge or refusal to act on their own terms [dealing with copyright infringement in the customer relationship agreement].”
“If it’s a clause they have no intention of enforcing, they’re in the position, the clause may as well not exist at all,” he said.
The case is set to continue today.
Patrick Stafford is a freelance journalist and a former deputy editor of SmartCompany.
