AFACT: iiNet stops spam, why not The Pirate Bay?

The copyright enforcement arm of a string of film studios has told a Federal Court hearing today that Internet service provider iiNet had authorised customers to download illegal movies partly by not “stopping” the infringements.

Australian Federation Against Copyright Theft (AFACT) legal representative, David Catterns, told a panel of three Federal Court judges that iiNet failed to take steps to prevent copyright infringement, despite having an “analogous” scheme in place to combat spam.

“There are a number of steps short of terminating an account that [iiNet] could have done including warnings. iiNet has a graduated response to spam... we proved there were other reasonable steps in place,” Catterns said in the Federal Court of Australia today.

“[iiNet] clearly had the right to control what happened here... the nature of relationship, a broad idea, includes a contractual [technical] relationship between ISP and person who has the account.

“This is a significant case because it relates to Internet and uses and balance of rights and responsibilities between ISPs and customers.”

In February, AFACT launched an appeal after the judge overseeing its much-publicised copyright case with iiNet, Justice Cowdroy, dismissed the case, following a five-month investigation that uncovered instances of copyright infringements by users of iiNet’s services.

Catterns said the case of University of NSW v Moorhouse (1975) has become a “very significant tool whereby copyright owners can achieve a measure of control and protection of rights”.

He pointed to a “fundamental error” in Justice Dennis Cowdroy's ruling that AFACT had “sued the wrong person” adding it is “not desirable to sue individuals time after time”.

The Motion Picture Association of America, and recently the fledgling US Copyright Group became infamous for instigating multiple civil law suits against thousand of alleged copyright infringers. Wired reported the latter group is suing some 15,000 users for allegedly downloading copyright-protected movies.

Catterns attacked iiNet's policy of terminating accounts based on customer admission or court orders that point to copyright infringement, and said its effectiveness is "in (CEO) Michael Malone's head".

“That is not a policy , not communicated, adopted or reasonably implemented properly,” he said.

He explained to the court the machinations of bittorrent and referenced the infamous web site the Pirate Bay and the uTorrent client.