AFACT v iiNet: Second chance termination strains resources

iiNet claims second chance termination of users who infringe copyright would be a strain on customer service resources

Suggestions by the Australian Federation Against Copyright Theft (AFACT) that ISPs terminate users after a single copyright infringement warning would be unsustainable, iiNet’s legal team has told a Federal Court this week.

The Internet service provider’s legal representative, Richard Cobden, told a panel of three judges at the court that AFACT’s insistence on terminating users would become a burden on iiNet’s customer service resources and could jeopardise the legitimate Internet use of both those who allegedly infringe copyright as well as other users of the connection.

Cobden argued that RC-08, an alleged prolific pirate and core of AFACT’s initial case against iiNet, is believed to have used an insignificant amount of his monthly data quota on infringing copyright. He said it was unreasonable for iiNet to terminate his Internet connection, which may been used for legitimate things.

While AFACT had insisted iiNet terminate infringing users, Cobden told the court that the copyright group had not provided any specific guidance on how to go about it, or how to deal with repeat offenders.

He also said AFACT’s suggestions would strain the ISP’s customer service resources.

“In addition to having to setup a system to deal with responses from the public... what that does then is throw a burden onto iiNet as an organisation at the customer relations level on having to deal with a someone else’s businesses - that is the copyright holders - on matters that isn‘t the realm of iiNet,” he said.

Cobden’s refutation is the latest salvo in a battle between iiNet and AFACT that one of the judges hearing the appeal case, Justice Emmett, contended was largely a commercial issue that wouldn’t provide a strong precedence in future cases.

In questioning Cobden on the foundations of the case, Justice Emmett said the argument between AFACT and iiNet largely revolved around who would bear the brunt of tackling copyright infringement, and that a commercial decision between relevant parties would provide a better outcome than a legislative one.

During the appeal case, Cobden reiterated communication between various Internet service providers, AFACT and the Internet Industry Association (IIA) regarding the possibility of instituting a code of conduct around dealing with copyright infringement during 2007 and 2008. It is believed those discussions were progressing positively, before AFACT issued a notice to iiNet.

As the appeal case entered its third day, iiNet questioned the reliability of copyright infringement information collected by AFACT, and that following DtechNet’s lead in collating such information would potentially cause the service provider to infringe copyright itself.

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