AFACT: Shape, prevent or playpen, but iiNet did nothing

The Australian Federation Against Copyright Theft (AFACT) has told the Federal Court in an appeal hearing that iiNet should have shaped, blocked or play-penned subscribers who infringed copyright.

But iiNet lawyers told Computerworld Australia yesterday that claims the ISP had communicated actively with those who had infringed copyright could not be considered in the appeal hearings this week because they were not introduced into evidence during the first Federal Court bout.

AFACT legal representative, David Catterns, claimed iiNet encouraged subscriber RC-08, accused as a prolific movie pirate, to upgrade to a higher-capacity plan once the user had reached the download limit.

“[iiNet] did nothing. They had complete power to prevent, warn, or flag the account. They can shape, suspend, and playpen,” Catterns said at a hearing in the full bench of the Federal Court today.

The bigger plan, Catterns said, would let RC-08 “do more of the things he loves online". He said the alleged infringer was listed on AFACT's “favourite document”.

Catterns said iiNet replied to the details in a letter sent to the ISP, claiming the details were defective references and noted it "would campaign to protect its users, and passed the letters to police. Thanks for nothing,” adding that iiNet wrote it would not “take the position of judge and jury, vigilante”.

Catterns said iiNet knew RC-08 was downloading and sharing movies illegally with other BitTorrent users “week after week”, which made for a “more compelling case” of ISP responsibility than was proven in the case of University of NSW v Moorhouse (1975).

He said iiNet accused AFACT of vigilantism in its letters alleging copyright infringements by its subscribers.

Earlier in the day, Catterns, told the 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.

“[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.